(dissenting). The prevailing opinion has set forth some of the pertinent facts in this case. Additional and relevant facts and testimony which sustain the conclusion that the judgment in favor of the plaintiff should be affirmed will be set forth herein.
As the basis for reversal, the prevailing opinion cites Moller v. Moiler (115 N. Y. 466). In my opinion that case is a direct authority for affirming the judgment. Although the Court of Appeals there held that the uncorroborated evidence of prostitutes and private detectives is insufficient to sustain a charge of adultery in an action for divorce, it pointed out that where the testimony of such witnesses is corroborated by proofs of facts and circumstances harmonizing therewith, giving such weight and strength to the testimony as to induce belief in its truth, a judgment founded thereon should be sustained. The court then reversed the decision of the General Term which had in turn reversed a judgment of divorce granted to the plaintiff. (45 Hun, 590.) In very forceful language the court said: “ 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, *250and 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.” (Italics ours.)
The Moller case was later referred to and limited or distinguished by the Court of Appeals in Winston v. Winston (165 N. Y. 553). The rule that evidence of detectives or of persons of so wholly debased a character as prostitutes should receive some corroboration in order to command judicial confidence was there held to be a rule for the guidance of judicial conscience, not a rule of evidence. At page 557 the court said: “ The corroboration which such evidence should receive must, simply, be such as to justify a belief that the incriminating testimony given is true. Slight corroboration would be sufficient. Here it is found in the testimony of the woman who had charge of the house in which the plaintiff was found by the detectives. Her testimony was that the detectives were in the house on the night in question; that one of them asked to see the plaintiff; that she took him to his room, rapped on the door and heard him respond and that she ‘ heard some disturbance after that.’ She did not see the woman in the room; but it was not essential that that fact, while a material one in the case, should be testified to by her. Her testimony established, if believed, the material fact of the presence of the detectives in the house and of that of Winston.” (Italics ours.)
A thorough consideration of the record now before this court discloses a great number of separate facts and circumstances testified to by the defendant and her witnesses, as well as the witnesses called by the plaintiff, which corroborate the testimony of the detective and fully sustain the finding of the court at Special Term that the defendant and Guerdon Herblin committed adultery as alleged.
In addition to bis testimony that he saw the defendant lying on a couch with her person exposed and the corespondent Herblin pulling down his trousers and that upon entering the house with the plaintiff and two disinterested witnesses he saw Herblin running toward the door “ buttoning his pants,” the detective testified to other important facts. He stated that the defendant had been drinking liquor. He also said that she wore no shoes. Furthermore, he said that on at least ten occasions between October 5 and November 25, 1940, the corespondent visited the defendant at her home. Some of these visits occurred as early as nine o’clock in the morning or during the day when the defendant had no maid or other person in the house. Other visits took place in the evening *251when the corespondent remained until late at night. On some of these occasions he saw the defendant and corespondent kissing, hugging and embracing each other.
The testimony of the detective concerning the incidents which occurred upon his entry into the Kruczek home was corroborated in all material details by Joseph F. Blackham, Jr. This disinterested witness was, with his brother, a member of the “ raiding ” party. He testified he was a married man who for nine years had worked with his father and brother in the moving business. After entering the living room in the Kruczek home he observed the corespondent “ pulling his pants up ” and the defendant lying on the couch. His description of the defendant’s appearance in a house dress, without shoes and with “tresses ” that were disarranged, confirmed that given by the detective. It may be here noted that this witness said that his brother, who was also present on November 25, 1940, was working on the day of the trial, thus explaining his absence from court.
Rose Gunther, a maid employed by the Kruczeks from January until June, 1940, testified as a witness for the plaintiff. She said she saw the corespondent at the house two or three times a week when the plaintiff was not at home. She observed their conduct and on one occasion had a talk with Mr. Herblin, who said “ he was very much in love with Mrs. Kruczek, and that if she was divorced he would marry her.” This witness also testified that she saw the defendant drink sherry wine “ quite a bit.” She stated that on one occasion the defendant “ had been drinking and she was quite hysterical and I was afraid to stay there alone, and my husband had to go to work early the next day, so he went to bed in Mr. Kruczek’s room. So, being that Mr. Herblin was not working, I figured that he could sit up with me all night to take care of her. Q. And did you and Herblin stay all night to take care of her? A. Yes.”
The corespondent was called as a witness by the defendant. He denied any improper relations with Mrs. Kruczek. He did admit that he took her motorcycling and roller-skating, but denied that he had ever gone on any trips with her. He also admitted remaining over night with Mrs. Gunther on the occasion when the defendant had been drinking and became hysterical. In addition, this witness said he called at the house “ two or three times a week ” at various hours. He denied, however, he was there as early as nine o’clock in the morning but said he did arrive at ten. He also said that on four or five occasions in late October or early November, after the defendant had retired, he remained in the house talking to the maid and that when she too went to bed after midnight he *252: remained in the house and did not leave until two-thirty or three o’clock in the morning, despite the fact that all the other persons in the household were upstairs in bed. His testimony concerning the number of times he called upon the defendant is very interesting: “ Q. How often did you visit her since you met her? A. Oh, quite a number of times. Q. Hundreds? Hundreds of times? A. Possibly. Q. So that the friendship that was existing between your mother and Mrs. Kruczek developed into hundreds of visits by you? Is that the fact? A. Yes, that is right.”
The defendant testified that her husband was “ dull.” Although she asserted that the corespondent was a friend of both parties to this action, she admitted that in the years they were acquainted the three went out together on only one occasion. She also admitted that the corespondent called at her home two or three times a week at various hours of the day and night. She said that on occasions he remained in the house talking to Miss North after she had gone, upstairs to sleep.
On one occasion she said she had driven to Atlantic City with, the corespondent, leaving at eight o’clock in the evening and returning at five or five-thirty in the morning. She thus contradicted the testimony of the corespondent that they took no trips together except “ just around town.” She also admitted that the corespondent had remained overnight on one occasion, at the suggestion of Mrs. Gunther, who also stayed to take care of the defendant,' whose testimony on the subject is as follows: “ Q. Do you remember the occasion when you were intoxicated? * * * Q. Do you remember that occasion? A. I can’t say exactly that I was intoxicated; I had two glasses of wine. I don’t know the taste of liquor.”
The record clearly establishes that on some of the visits of the corespondent he was alone with the defendant. Miss North, the college student acting as part-time maid from October 17, 1940, was called as a witness by the defendant. She said that during the five weeks immediately preceding November 25, 1940, the corespondent called on the defendant at least twelve times. She also said that on occasions as she was leaving for college about eight o’clock in the morning she would see the corespondent come in. In this respect she corroborated the testimony of Detective Wittenberg who said he saw the corespondent leave the premises at nine o’clock in the morning. She also contradicted the corespondent, who denied he ever called on the defendant before ten o’clock in the morning. In addition, Miss North testified that on the evening of November 25, 1940, Mrs. Kruczek “ had a few glasses of wine ” and thus corroborated the statement of Detective Wittenberg that the defendant was drinking on that evening.
*253This witness also testified that on about five occasions the corespondent remained in the house after the defendant and the witness had retired, although it was then after midnight. In this connection she gave the following testimony: “ Q. Didn’t you think it rather strange that he should have remained after everybody in the household had retired? A. Well, I didn’t «think much about it, because I knew he worked nights and he was not tired. Q. Did not it arouse any curiosity in your mind? A. I don’t know. Why should it? Q. I don’t know. Did it? A. No.”
Miss North’s testimony also established that the defendant and the corespondent were alone in the house. She testified: “ Q. Were you with them all the time that he was there? A. Of course not. How could I be? Q. I am asking you. Were there occasions when they were alone without your chaperoning them? A. Of course.”
A question concerning what Mrs. Kruczek and Mr. Herblin did when they were together brought the following interesting response from Miss North: “ Q. What did they do there when they spent hours and hours together? A. They talked. Q. Talked of what? A. Anything. Q. I was not there and the court was not there. Please tell us what they talked about. A. What do people generally talk about? I do not know.”
The foregoing sufficiently demonstrates that the defendant and the corespondent were frequently alone in the house and that they enjoyed each other’s company; went motorcycling, roller-skating, driving in her car and talked for hours and horns on the numerous occasions that he called upon her. In addition, a wholly disinterested person testified that the corespondent said he would marry the defendant if she obtained a divorce.
An issue of fact for the trial court was presented by the testimony of the detective, amply corroborated in a number of instances by that of other witnesses, including the defendant’s witnesses and admissions of the defendant and corespondent. In granting the motion of plaintiff for judgment against the defendant the court said:
“ The evidence is quite clear, and I am concerned to find that there was opportunity and inclination, from the incriminating circumstances that have been testified to, even by the defendant’s witnesses. 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. Of course, the incriminating act was not in her presence, but she testified to it. I lay more stress on her testimony than all the testimony to show circumstances, that this man Guerdon, the corespondent, came there at times *254when she went to school at eight o’clock in the morning; that he remained there at night after both she and Mrs. Kruczek retired. No intelligent person would believe that he came there at eight, o’clock in the morning just to fix his motorcycle. * * * '¡
“ And he did not stay there after midnight to complete fixing the motorcycle. Here is a husband and wife who are separated practically. That is, they did not have the relationship of husband and wife for years. Here is a young man constantly coming to the home, not to see the husband; he did not see the husband but he was constantly in company with the wife. * * *
“ There is one conclusion I can come to from all the evidence in this case, that the allegations of the complaint have been proved and I so hold.”
In Boyd v. Boyd (252 N. Y. 422) the Court of Appeals in reversing the Appellate Division and sustaining the trial justice who had granted a judgment to plaintiff in an annulment action, held that where the evidence, if credible, establishes the essential facts and there is nothing therein outside the realm of probability, the decision of the trial justice who saw and heard the witnesses should not be disturbed.
It is quite proper again to quote from the opinion in the Moller case (supra): “ We are satisfied that the evidence was sufficient, in the language of Lord Stowell in Chambers v. Chambers [1 Hagg. Con. R 439], to ‘ lead the guarded discretion of a reasonable and just man to the conclusion ’ that the adultery charged had been committed.”
The finding by the court that the defendant committed adultery is fully supported by the record. ./ ,
The judgment appealed from should be affirmed. ;
Judgment 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 is affirmed, with costs to the defendant-appellant. Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.