From an order declaiing a mistrial and directing a retrial of the action upon all the issues framed for trial by jury, plaintiff appeals.
The action is for divorce. As a defense to the action, and as the basis of a counterclaim for a divorce against the plaintiff, the defendant alleged that the plaintiff on her part had been guilty of certain adulteries. Thirty-one issues were framed for submission to the jury. Twenty-nine of these issues were disposed of *80by direction of the court or by the findings of the jury. Upon two issues the jury were unable to agree. As a result the jury found defendant guilty of two acts of adultery, disagreed as to one and found the rest for the defendant. On the question as to plaintiff’s adulteries the jury disagreed as to one and found the rest for the plaintiff. Under these circumstances, no judgment could be entered. This because, although the jury had determined the guilt of the defendant, they had failed to determine the innocence of the plaintiff.
By statute it is provided that a divorce must be denied, although adultery of the defendant has been proven, where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce. (Civ. Prac. Act, § 1153.) In the case at bar the defendant, by counterclaim, has charged the plaintiff with adultery. Upon this issue the jury could not agree and the defendant is entitled to have it retried. Until this issue has been disposed of, therefore, the plaintiff obviously is not entitled to a decree.
It is urged by the plaintiff that the issue of defendant’s guilt having once been determined by a jury, their verdict is conclusive, and that it only remains to try the issue of the guilt of the plaintiff.
A limited retrial, however, is never a matter of right but always a privilege. (Wilson v. Mechanical Orguinette Co., 170 N. Y. 542, 552.) Where under the pleadings a separate judgment cannot be entered, a limited retrial cannot be had. In City of Buffalo v. D., L. & W. R. R. Co. (176 N. Y. 308) Judge Vann said: “ If the judgment is entire, even if it might have been otherwise, it cannot be so severed on the decision of an appeal as to grant a new trial of part of the issues only without confusion and danger.”
A partial retrial, moreover, is never ordered where the issues are related or prejudice may result.
In the case at bar we are only concerned with a cause where a separate judgment may not be entered, the issues are closely related and where prejudice would result if a partial retrial was directed. In the first place, it is conceded that only one judgment may be entered. Next, the issues are not separate but closely related. As already noted, neither party may obtain a divorce unless that party not only establishes the guilt of the other, but has shown its own freedom from like guilt. (Civ. Prac. Act, § 1153.)
Moreover, in an action for divorce the issues are closely interrelated not only because the party, to be successful, must establish his own innocence as well as the guilt of the other party, but the relationship of the parties growing out of their marriage is such that the charges brought by one tend to provoke similar charges on the part of the other. Lastly, under the circumstances in the *81case at bar, prejudice would result if a partial retrial of the issues were ordered. In order to see this most plainly, we must appreciate the issues which the plaintiff contends should be retried. Her contention is not that the new trial should be limited to the question of her guilt or innocence, as to which the jury disagreed, but also that there should be retried at the same time the question as to whether the defendant is guilty of adultery on the charge as to which the jury likewise disagreed. The defendant having been found guilty by the jury at the instance of the plaintiff on two other charges of adultery, why then, it is reasonable to ask, does the plaintiff wish again to find the defendant guilty of still another charge? It is not necessary so to do if the plaintiff .can prove her own innocence, since she may then succeed in obtaining her divorce on either or both of the two charges of adultery already established. An apparent reason is that where there is a single charge and a counter-charge, the jury is very likely to compromise and find neither party guilty. This is exactly what is hoped for by the plaintiff. She could then rely upon the findings made in the partial verdict and on that verdict secure her divorce. Moreover, as a practical matter, if the plaintiff can try out the question of her own innocence after she has established the guilt of the defendant, then the force of the contention is increased ten-fold that the defendant, having been found guilty, is simply seeking in retaliation likewise to convict the plaintiff. In other words, the defendant would then be in the position of a man attempting to prove the guilt of his wife after his own guilt has been established. Moreover, a limited retrial saves nothing either in the restewing of the mess or by way of expense, since the plaintiff admits that upon the retrial of the question concerning her relations with the corespondent Hann, all the testimony that was introduced at the previous trial can be shown by the defendant on the new trial to show inclination. The same is true as to the retrial upon the question concerning the adultery of the defendant. Under such circumstances there would be no saving either of time or expense by a retrial of a portion only of the issues.
The learned court thus acted well within his discretion in ordering a retrial of all the issues framed for trial.
The order appealed from should be affirmed.
O’Malley and Sherman, JJ., concur; Merrell and McAvoy, JJ., dissent.