Judgment unanimously reversed on the law and facts, without costs, and new trial granted. Order unanimously affirmed, without costs. Memorandum: Defendant, who on the date of the trial was serving a sentence for a felony conviction, appeals from a judgment of divorce. He was represented by assigned counsel, but by reason of his incarceration, was not present at the trial. Plaintiff sought to prove appellant’s adultery by use of the record in his criminal trial, and particularly by the introduction of a transcript of the testimony of a female witness produced by the prosecution. During direct and cross-examination the witness admitted that on one or more occasions she stayed at hotels with defendant. Defendant’s counsel strenuously objected to this method of proof upon the ground that the testimony as to the alleged adultery “ was entirely on a collateral matter in a criminal proceeding” and that he was deprived of the opportunity to cross-examine the witness. The stenographer’s minutes of the criminal trial indicated that the cross-examination of the witness was incomplete, for she experienced an emotional upset and abruptly left the witness stand. The issue at the criminal trial was in no way related to the alleged adulterous relationship and defense counsel did not have “ the same motive to expose falsehood and inaccuracy ” as defendants attorney would have at the trial of the divorce action (Fleury v. Edwards, 14 N Y 2d 334, 339). Furthermore, an inadequate explanation was given for' the unavailability of the witness (CPLR 4517). The record contains statements demonstrating that at the time of the trial defendant had been confined in prison for more than three years. If such *1047is the fact, plaintiff may well secure the relief she seeks in an action based upon subdivision (3) of section 170 of the Domestic Relations Law. (Appeal from judgment and order of Oneida Trial Term granting divorce; order denied motion for change of venue and other relief.) Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Henry, JJ.