This is an action for absolute divorce. Plaintiff, in whose favor judgment was entered, married the defendant on January 28, 1930. One child was born of the marriage on March 23, 1935. Shortly after the birth of the child, plaintiff ceased to cohabit with defendant. _ He frequently absented himself from *243his home. In fact, he rented a three-room apartment at Wood-side, Long Island, in 1939 and resided there until the end of September, 1940.
At the time of the trial defendant was thirty-nine years of age, whereas the plaintiff was about six years younger. The corespondent, Guerdon Herblin, was twenty-three years of age. The corespondent owned a motorcycle and he and the plaintiff were accustomed to go out riding on it frequently. Herblin kept his motorcycle in the garage on the premises of the parties’ home in Flushing. The plaintiff and he, as late as September, 1940, worked together in the garage, apparently in connection with the motorcycle. During this period their relations were very friendly.
In view of the testimony offered by plaintiff at the trial, it might be well at the outset to quote from the opinion of the Court of Appeals in Moller v. Moller (115 N. Y. 466). There Judge Earl, in writing for a unanimous court, said, in part: “ We agree with the learned judges of the General Term in their low estimate of the value in divorce cases of the evidence of prostitutes and private detectives. The courts have come to regard the uncorroborated evidence of such witnesses as insufficient to break the bonds of matrimony. [Citing cases.] The consequences which follow a judgment of divorce are so serious and momentous that such a judgment should not be granted without the evidence which furnishes the basis therefor, is, after very careful scrutiny, satisfactory and such as can command the confidence of a careful, prudent and cautious judge.”
One William R. Wittenberg, a private detective, testified that he was employed by the plaintiff on October 4, 1940, “ to see the conduct of his wife and give him reports on the result of his wife’s conduct.” The agreed price for the services which were to be rendered was $350, payable in advance. He first saw the corespondent on the evening of October 5, 1940, at about eight p. M. when Herblin entered defendant’s home. At that time he was concealed behind some bushes across the street and was using “ a very strong pair of opera glasses.” Later he took a position near a window at the side of the house and observed defendant and the corespondent “ hugging and kissing.” Incidentally it should be noted that this witness testified that the side window through which he looked had a shade but that it was never drawn, “ that would always be pulled halfway.” Apparently there was no attempt at concealment. He further stated that he observed them on occasions from a window in the rear of the house and that the defendant while at home wore either dark pajamas or a loose house dress.
*244In the decision the court has found: “ That heretofore, and on the 25th day of November, 1940, at 27-10 — 163rd Street, Flushing, in the Borough of Queens, City of New York, the defendant committed adultery with one, Guerdon Herblin, the corespondent named in the complaint.”
The justice who presided at the trial, later in his opinion pertaining to the custody of the child, said in part: “ Aside from the single moral lapse referred to there is no evidence establishing that defendant is unfit to have the custody of her son * * *.”
The chief witness against the defendant was the detective, Wittenberg. His testimony covered the events which led up to a raid upon the premises. Following the rule laid down in the cases, it is necessary to scrutinize his testimony carefully and contrast it with that of one Alva North who was called as a witness by the defendant. It is not feasible to detail at length in this opinion everything that Wittenberg testified to. He said he saw the corespondent enter the premises of the defendant at about eight-thirty p. m. Before entering he rang the bell. The defendant came to the door, kissed him and both walked into the vestibule. Shortly thereafter the detective saw the defendant, wearing a loose house dress, and Herblin sitting on the couch in the living room. He then observed the defendant go into the kitchen in the back] of the house. She had a glass “ of some liquid, water, or whatever, it was in this glass, and then she lied down on the couch.” The defendant and the corespondent were drinking, hugging and kissing' and at the same time the corespondent was rubbing his hand on the exposed part of the defendant’s feet. j|
The detective then had a conversation with the plaintiff, after which he left and went away for about twenty minutes for the purpose of bringing two witnesses to the scene. It developed later that the witnesses were two brothers, only one of whom was called at the trial. Upon his return, the detective went to the side window. Here it might be of interest to note that on being apprised on cross-examination that the sill of the side window was about eight feet above the surface of the ground, the detective who was less than six feet in height, conveniently and for the first time during his testimony, produced a box upon which he stood. The question which brought forth that answer and the reply of the witness are as follows: “ Q. Yes. You couldn’t stand back from that side window at all, you had to stand right up close to the window, didn’t you? A. No. There is a little bit of a passageway there and we had a box all planted there and we continually looked in from that box.”
*245The box was “ An old wooden box that we had planted in those bushes. * * * The size 0f a beer case box.” On being asked, “ Where did you get the box? ” he said, “ Oh, in the neighborhood somewheres. It was laying around. When I first got there, we placed it in the bushes.” He was asked, “ Which part would you stand on, the end or the side? ” to which he replied, “ You would turn the box upside down, or you would try to stand on the end of it,' if it would hold.” When asked how high the box would elevate him, the witness stated, “ Elevate you about two feet or two and: a half.” On further cross-examination, the following appears: !
“ Q. At how many windows did you need boxes to stand on? A. You needed in the rear of the house, alongside of the garage —• you needed a box or two to stand on to look into the kitchen if. the opportunity afforded itself. You needed a box or so to stand j alongside of the house in those bushes in order to look in through that window which looks right into the living room. * * *
“ Q. Did you have a box for each window, two separate boxes? A. I would not say boxes for each window. Whatever was standing there or whatever we made up we stood on. It was only for a little time that you could stay there, because the rattling of the shrubbery could be heard inside, we had to get out and make as quick a getaway as possible.”
From the box he saw the corespondent standing up, “ put his hand on his pants and pull them down.” After a brief discussion between him and the plaintiff, who was at his side, the two Black-ham brothers were called over from a parked automobile in which they had been sitting. The four men entered the house after plaintiff had used his key to open the door. The detective testified, “ Mr. Guerdon at that time was running towards the door and he had his hand on his pants buttoning his pants.” Upon being asked by the court which portion of the trousers he referred to, the detective replied, “ the front part.” The detective further testified that a scuffle occurred between plaintiff and the corespondent, “ both were hitting one another.”
Incidentally, attention should be directed to the fact that each time the detective might have been in á position to observe whether in fact an act of adultery was committed on the night of November twenty-fifth, the date fixed in the decision, he conveniently absented himself. First he left the scene for a period of about twenty minutes for the purpose of procuring the Blaclchams as witnesses. He then returned with plaintiff to his position on the box. He did not direct the latter to notify the witnesses while he remained to continue his observations, rather he went around to the front of the house and “ about 10 minutes later, five or ten minutes *246later, after signaling them, we went in, and that was five minutes after ten or thereabouts.” ;
While the Blackham brothers were present at the scene, only! one, Joseph F. Blackham, Jr., was called as a witness. He testified ¡ that plaintiff opened the door with a key, Wittenberg followed'' and “I went, in behind with them.” He said, “ I saw Herblin ¡ when he was pulling his pants up when we entered the house.” ¡
Either the detective or Blackham did not tell the truth as to. what Herblin actually did with reference to his clothing, a matter1 of no small importance to the defendant when the charge against her is considered. While, as to the night of November twenty-! fifth, he corroborated the detective concerning the fact that the defendant was actually lying upon the couch —1 a fact which defendant and her witnesses also asserted —■ still that in substance was the only thing, with the exception of the scuffle, that he could remember.
The defendant denied absolutely any wrongdoing on her part either on the night of November twenty-fifth or on any other occasion. She freely admitted that the corespondent visited her home on a great many occasions when her husband was not present. As to the events of the night in question, she testified that she had bathed her youngster at about seven p. m. and put him to bed, she came downstairs and fell asleep on the sofa in the living room. She was wearing a street dress at the time. Some two hours later she was awakened when she heard the victrola playing in the living room. She saw Alva North and Herblin standing at the victrola. At the time they were playing a record which Herblin had made. It was a recording of a song by him. She testified that after listening, “ I criticized the record after I had listened to it, both sides, and I criticized the tonal qualities and the interpretation, and I thought it a very good record.” Immediately after the record-was played, “ We heard a noise outside, and I said to Guerdon, ‘ Would you go to the door and see what that noise is? ’ ” She then observed the men coming into the house and witnessed the scuffle between Herblin and not her husband,. as the detective and Blackham had said, but the detective.
The corespondent, on his part, denied that he had sexual relations with the defendant on that night or any other time. His testimony, particularly as to the happenings on the night of November twenty-fifth, is at variance, to say the least, with that of the detective. He said that he arrived at the house between seven-thirty and eight o’clock. He rang the front door bell and was admitted by Alva North. At that time defendant was asleep on the sofa which was ón the left-hand side of the living room. He went with Alva *247North to the kitchen in the rear where the latter was doing her school work. Later Alva made coffee which they drank. At about ten o’clock he wished to have the defendant hear the record he had made. Alva and he went into the living room, played the record and awakened the defendant. Later Alva returned to the ldtchen and shortly thereafter he heard a noise outside. He went to the front door, opened both the inner and outer doors of the vestibule and asked the crowd of men what they wanted. He then said, “ They rushed me at the door and forced me through the door back into the living room.” He testified that he had a scuffle with the detective and that plaintiff was not present at the time but came in some five or ten minutes later when he was called.
Before reviewing the testimony of Alva North, it might be apropos to quote from the statement of the trial justice which appears in the record near the conclusion of the case. It is in part: “ I think that the young girl employed in the household of the Kruczeks, Alva, told the truth as to what she saw. There is no question about her testimony.”
Alva North, a girl twenty-one years of age, entered the employ of the defendant on October 17,1940, and continued until December twenty-first of the same year. She was a student at Queens College in Flushing. She testified, “ I wanted to have some way of making my college expenses on the side, so I put an ad in the paper asking for a room and board and a small allowance for the care of a child, and Mrs. Kruczek answered my ad.” It is unnecessary to detail at length either the hours she spent at college or the services she rendered at the Kruczek household. She said, in substance, that upon the night of her arrival at the Kruczek’s home, the plaintiff came to the house but after that he appeared only once a week. She testified that on the evening of November twenty-fifth, after the child had been put to bed, defendant came downstairs and had a glass of wine. Shortly afterward defendant fell asleep on the sofa in the hving room. About seven-thirty, or quarter to eight, Herblin appeared. She admitted him and told him that the defendant was asleep. Herblin and she went into the kitchen where she had been doing her homework. They sat and talked for awhile. She made coffee and at approximately ten o’clock they entered the hving room to play the victrola. After the defendant awoke, she listened to Herblin’s record, criticized it, and shortly after Alva returned to the kitchen to resume her school work. ' About fifteen minutes later she heard “this awful commotion.” She looked into the hving room, being in a position to see it through the doorway of the kitchen from the table at which *248she was sitting. She walked through the dining room where one of the men in the party “ grabbed me and took me into the kitchen and he put his arms across the door and would not let me go through.” She denied that the corespondent had ever slept there. She further denied ever seeing any wrongdoing either on that night or any other occasion between the corespondent and the defendant. In fact the following series of Questions and answers will indicate the type of girl she was: “ Q. Did you ever see them do anything which would indicate that their relations were immoral? A. No. If I had, I would have moved out. Q. You would not have stayed there? A. No. * * * Q. You live home with your folks? A. Yes. Q. Did you ever see any hugging and kissing? A. No. Q. Did you ever see him put his arm around her? A. No. Q. Did you ever see him put his hand over any part of her body? A. No. Q. Did you ever see him do anything to indicate that they were intimate in their relations? A. No, I did not.”
When questioned she made reference to the rough diagram of the house which was introduced into evidence, and which sets forth the position of the kitchen table and the doors, indicating that a person sitting in the same position as she was on the night in question could have seen the living room and the couch which was on the left-hand side of it as one enters the house.
The contrast between the testimony, of Alva North and the private detective as to what occurred in the household prior to the raid, is self-evident. Either Alva North, upon whose testimony the justice presiding at the trial put his stamp of approval, did not tell the truth, or the detective, whose testimony must be carefully scrutinized, was guilty of false swearing. That the defendant and the corespondent, so called, would have committed adultery on the night of November twenty-fifth in the presence of this young girl of high character, seems impossible. In writing this, we have in mind the conclusion of the first paragraph of Judge Earl’s opinion in Moller v. Moller, from which we have already quoted. It reads as follows: “ But the illicit amours of faithless husbands and wives are usually clandestine, and their wicked paths are hidden from public observation; and hence courts must not be duped, and they must take such evidence as the nature of the case permits, circumstantial, direct or positive, and bringing to bear upon it the experiences and observations of life and thus weighing it with prudence and care, give effect to its just preponderance.”
While the case of Boyd v. Boyd (252 N. Y. 422) has been cited in the minority opinion to sustain the judgment of Special Term, we do not believe that it is controlling here. We are familiar with the testimony which was adduced. There, for the most part, the *249witnesses called by the plaintiff gave testimony as to events which had occurred some fifty years before the trial which indicated that Boyd had entered into a common-law marriage with one Annie Bernes long prior to his marriage to Mrs. Boyd. It will be seen from a study of the opinion of the Court of Appeals together with a reading of the majority and dissenting opinions in the same case (which is reported in 226 App. Div. 358), that what both courts were dealing with was the credibility of the testimony adduced on behalf of Mrs. Boyd. After reviewing the evidence at some length, Judge O’Brien, writing for the majority of the Court of Appeals, said in part: “ In a case so close as this, let the court of first instance decide. Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth.” There was no private detective in that case, as here, whose testimony had to be carefully scrutinized and corroborated. Therefore, we do not believe that it has any application.
The judgment should be modified to the extent of directing that the complaint be dismissed, with costs to the defendant-appellant, and as so modified the judgment so far as appealed from should be affirmed, with costs to the defendant-appellant.
Townley and Untermyer, JJ., concur; Martin, P. J., dissents and votes to affirm.