After trial of framed issues of adultery plaintiff wife, who was found guilty of one of the charges, claims error in the admission of evidence and unfairness in the trial as a result of tactics of the husband’s trial counsel.
*35The wife brought the action for separation. The husband counterclaimed for divorce in an amended and supplemental answer specifying two adulteries. One adultery is alleged to have occurred in New York City with one of the lawyers for the wife, during the pendency of the action. At the close of the husband’s proof the charge of adultery in Italy was dismissed. The trial proceeded with respect to the issue of the alleged New York City adultery.
The lawyer who tried the case for the husband had personally directed the investigation, and was personally present during the shadowing and the “ raid ” which produced the evidence of the alleged New York City adultery. He testified at length as a witness with respect to his observations in such investigation including the “ raid ”. As a consequence of the lawyer’s activity and testimony, developed before the jury, Ms participation as overall strategist, investigator and witness must have been impressed upon the jury.
The record demonstrates that his integrity, credibility and professional status were intertwined inseparably with the issues of the case upon which the jury was obliged to make a finding.
The Canons of Professional Ethics provide: “When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in Court on behalf of his client.” (Canon 19.)
The Canons further provide: “ It is improper for a lawyer to assert in argument his personal belief in his client’s innocence or in the justice of his cause.” (Canon 15.)
Assuming that the lawyer’s active personal participation in the pretrial investigation was nothing worse than undignified, it established the likelihood of his becoming a witness upon the trial. Even if he had not testified as a witness, the repeated reference to his presence at events described by witnesses procured and examined by him emphasized that he personally vouched for their testimony. When the implication of such voucher was made manifest by his taking the stand the lawyer staked his oath and his word against his client’s adversary. In the absence of compelling necessity that was improper. The record shows that the trial lawyer’s word and his oath were in issue. Especially in a case involving such delicate issues, charged with high emotional pressure, the trial was not a fair one regardless of cumulative proof.
*36There is no showing, except for an ipse dixit, of the necessity of counsel becoming a witness or of the prospective witness acting as counsel.
For the reasons set forth we might be moved to consider on those grounds alone the granting of a new trial in the interests of fairness and in the interests of maintaining the dignity of the judicial tribunal and of the profession. (See Flamm v. Noble, 274 App. Div. 1037, and Cherry Creek Nat. Bank v. Fidelity & Cas. Co., 207 App. Div. 787, 791.) But there was more in this trial, for which the trial lawyer was largely responsible. Unfairness in the offer of rejected evidence in combination with errors in the admission of evidence had the effect, on the particular facts, of debasing the verdict.
The husband, although prohibited in a case of this kind from testifying as to any but certain limited matters by section 349 of the Civil Practice Act, was permitted to testify and detail the physical description of the apartment in which the alleged adultery occurred, and to identify the handwritings of the alleged paramour in Italy. The effect was to offer the husband as a witness indirectly to facts of adultery.
An affidavit of the wife’s mother was offered in evidence by the husband’s counsel and received. It contained matter distinctly adverse to the wife. It was clearly inadmissible as hearsay and incompetent opinion. The fact that it was a filed affidavit originally submitted by the wife on a motion in the action did not make it competent. Such submission of the affidavit by the wife may have been an admission that the mother said what she said but it was not an admission that the assertions were true. The effect of receiving it in evidence upon the trial must have been damaging and prejudicial.
But we come to even more serious matters which suggest disregard of the canon that ‘ ‘ A lawyer should not offer evidence, which he knows the Court should reject, in order to get the same before the jury by argument for its admissibility ”. (Canon 22.)
It will be recalled that the New York City adultery ivas alleged to have occurred with a lawyer who had represented the wife. This lawyer had been employed by a firm of lawyers. One of the partners of that firm ivas called to the stand and permitted to testify that the lawyer was no longer an employee. Effort was made to offer a paper bearing the signatures of the wife and the partner. The fact that the law firm waived all compensation for its services was presented to the jury in *37a question by the lawyer for the husband, to which question objection was of course sustained. Then, to top it off, counsel asked in open court for a waiver of the privilege between attorney and client, which was declined. Commentary is not required.
There were other tactics with respect to the proof of the alleged adultery in Italy which arguably may have influenced the jury in its finding with respect to the alleged New York City adultery. It is not necessary, however, to comment upon them, because that issue no longer remains in the case, it having been dismissed. In any event the principles are plain and clear. None should have difficulty in applying them.
The circumstances mentioned render the trial in this case an unfair one and therefore require a reversal of the interlocutory judgment and the granting of a new trial upon the framed issue of the alleged New York City adultery. This is so despite the fact that the proof with respect to the alleged New York City adultery was adequate. Nevertheless the injection of the circumstances to which we have referred make it impossible to say the jury’s determination on the controverted issue was not infused with elements prejudicial and unfair to the plaintiff wife. It is not enough that a jury have submitted to it sufficient proof on an issue of fact. (See Walter v. Joline, 136 App. Div. 426, wherein the court said at p. 429: ‘ ‘ However good a litigant’s cause of action may be, a verdict recovered under such circumstances ought not to stand ”.) It is mandatory that the issues be presented clearly and free of a murky atmosphere of prejudice, irrelevant suggestion, and the displacement of clients by counsel.
The interlocutory judgment of divorce should be reversed, with costs and a new trial granted as to the framed issue of the alleged adultery under the first counterclaim in the answer.