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
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
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.