Where in an action for divorce it is clearly proven that the plaintiff is entitled to a decree it should not be refused merely because the plaintiff's attorney accompanied and assisted the witnesses who entered the defendant's house and discovered that he was living in open adultery. Hyman v. Hyman (1913), 154 App. Div. 469, 139 N. Y. Supp. 65.

The failure of a defendant to appear and deny testimony charging him with adultery is entitled to consideration. Butler (1912), 134 N. Y. Supp. 108.

Butler v.

Lampson v.

Evidence establishing commission of adultery. Lampson (1916), 174 App. Div. 851, 159 N. Y. Supp. 368; McNeir v. McNeir (1911), 129 N. Y. Supp. 481.

When a married woman is pregnant with or gives birth to a child under circumstances negativing the possibility of her husband's being the father of it, her adultery is proved. Timmann v. Timmann (1913), 142 N. Y. Supp. 298.

The proof taken before a referee showed that the defendant, together with an unknown woman, had registered at a hotel under a false name, and had been taken together with baggage to the upper portions of the hotel. Evidence examined, and held, that the report of the referee finding the defendant guilty of adultery should have been confirmed, as the action having been defended and the confirmation of the report having been opposed, the parties could not be charged with collusion. Davis v. Davis (1912), 152 App. Div. 830, 137 N. Y. Supp. 749.

Evidence insufficient to establish adultery of wife.

Glamann

v. Glamann (1917), 163 N. Y. Supp. 533; Hindley v. Hindley (1912), 150 App. Div. 719, 135 N. Y. Supp. 757.

Evidence examined, and held, insufficient to establish the adultery of the husband. Werner v. Werner (1912), 149 App. Div. 511, 133 N. Y. Supp. 1026; Keville v. Keville (1907), 122 App. Div. 388, 106 N. Y. Supp. 993.

Evidence which fails to identify the man with whom the defendant is alleged to have committed adultery is insufficient. Mondano v. Mondano (1910), 122 N. Y. Supp. 731.

See also cases under subdivision 4 of this article.

Subd. 4. When Corroboration Required.

(Fiero, Spec. Act., 3rd Ed., pp. 1164-1167.)

A person who, at the solicitation of the defendant in an action for absolute divorce, undertook for friendship, and without pay or the promise thereof, to obtain evidence against the plaintiff, was not, as matter of law, a private detective, whose testimony, as to acts of adultery on the part of the plaintiff, must be corroborated by other evidence. Yates v. Yates (1914), 211

N. Y. 163.

Testimony that one of the corespondents was a lewd woman more than a year after the alleged adultery, was properly excluded as not corroborative evidence, there being no presumption that the corespondent, a girl fifteen or sixteen years of age was a lewd woman at the time of the alleged adultery, because she may have been such one or two years later. Graham v. Graham (1916), 173 App. Div. 460, 159 N. Y. Supp. 918.

In an action for absolute divorce a confession of the defendant is admissible on the issue of adultery; but in order to avoid collusion the courts will refuse a divorce on confession alone and require some corroboration of the facts stated in the confession, and if there be such corroboration, the confession will support a decree. But it is not necessary that the corroboration should be sufficient, standing by itself, to prove the fact of adultery. Monypeny v. Monypeny (1916), 171 App. Div. 134, 157 N. Y. Supp.

11.

Evidence insufficient to corroborate defendant's admission of the commission of adultery charged in the complaint in an action by his wife for divorce. Stetson v. Stetson (1914), 146 N. Y. Supp. 245.

Subd. 5. Collusion, Procurement, Connivance.

(Fiero, Spec. Act., 3rd Ed., pp. 1167-1168.)

Report of a referee in a divorce action examined, and held, that findings that the first alleged act of adultery was condoned, and that the second alleged act of adultery was committed with the consent, connivance and procurement of the plaintiff were sustained by the evidence. O'Hara v. O'Hara (1910), 136 App. Div. 378, 120 N. Y. Supp. 982.

Where a detective, employed by a husband to procure evidence against his wife, hired an assistant who entertained the wife and took her to the house where the alleged adultery was committed, the husband is chargeable with the acts of his agent and is not entitled to a divorce. McAllister v. McAllister (1912), 137 N. Y. Supp. 833.

Evidence insufficient to warrant decree of divorce, where plaintiff, merely because she did not love the defendant, left him and thereby influenced his subsequent conduct. Richardson v. Richardson (1906), 114 N. Y. Supp. 912. See also cases under subdivision 4 of this article.

Subd. 6. Admissions and Confessions.

(Fiero, Spec. Act., 3rd Ed., pp. 1168-1169.)

In an action for absolute divorce a confession of the defendant is admissible on the issue of adultery; but in order to avoid collusion the courts will refuse a divorce on confession alone and require some corroboration of the facts stated in the confession. and if there be such corroboration, the confession will support a decree. But it is not necessary that the corroboration should be sufficient, standing by itself, to prove the fact of adultery. Monypeny v. Monypeny (1916), 171 App. Div. 134, 157 N. Y. Supp.

11.

Subd. 7. Evidence in Actions for Separation.

(Fiero, Spec. Act., 3rd Ed., p. 1170.)

One suing for a separation must establish a valid and existing marriage. Dietrich v. Dietrich (1908), 128 App. Div. 564, 112 N. Y. Supp. 968. See also cases under Article XVIII, ante.

ARTICLE XXVII.

JUDGMENT.

(Fiero, Spec. Act., 3rd Ed., pp. 1170-1192.)

SUBD. 1. Interlocutory and final judgment on default.

2. Interlocutory and final judgment on report or decision.
CODE CIV. PRO., § 1774. Regulation respecting judgments.

4. Provisions for custody of children in judgment.

5. Modification of judgment.

Subd. 1. Interlocutory and Final Judgment on Default.

(Fiero, Spec. Act., 3rd Ed., pp. 1171-1172.)

Judgment of course on default in a divorce action is absolutely prohibited. Judgment can only be granted, where the defendant has defaulted, after the plaintiff has proved the material allegations of his complaint. McNair v. McNair (1910), 68 Misc. 570, 125 N. Y. Supp. 191, revd., 140 App. Div. 226, 125 N. Y. Supp.

1.

The granting of a divorce on the consent of the defendant is absolutely prohibited by Rule LXXVI. Taylor v. Taylor (1908), 123 App. Div. 220, 108 N. Y. Supp. 428.

Judgment of separation entered by consent and based on findings agreed to by the parties without evidence supporting the alle gations of the complaint is void. A defendant by consenting to the entry of such judgment is not estopped from attacking its validity. Rule LXXVI provides that no judgments in matrimonial actions shall be made of course on the default of the defendant or in

consequence of any neglect to appear or by consent, has all the force of a statute, and the court is not at liberty to disregard it. Boyer v. Boyer (1908), 129 App. Div. 647, 114 N. Y. Supp. 15.

Subd. 2. Interlocutory and Final Judgment on Report or Decision. (Fiero, Spec. Act., 3rd Ed., pp. 1172-1182.)

In an action brought as prescribed in this title, a final judgment shall not be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless either the summons and a copy of the complaint were personally served upon the defendant; or the copy of the summons delivered to the defendant, upon personal service of the summons, or delivered to him without the state, or published, pursuant to an order for that purpose, obtained as prescribed in chapter fifth of this act, contains the following words, or words to the same effect, legibly written or printed upon the face thereof, to wit: "Action to annul a marriage;” “Action for a divorce; ' or "Action for a separation; " according to the article of this title, under which the action is brought. Where the summons is personally served, but a copy of the complaint is not served therewith; or where a copy of the summons and copy of the complaint are delivered to the defendant without the state, the certificate or affidavit proving service, must affirmatively state, in the body thereof, that such an inscription, setting forth a copy thereof, was so written or printed upon the face of the copy of the summons delivered to the defendant. In an action brought under either article first or article second of this title for judgment annulling a marriage, or divorcing the parties and dissolving a marriage, the decision of the court or report of the referee must be filed and interlocutory judgment thereon must be entered within fifteen days after

the party becomes entitled to file or enter the same, and can not be filed or entered after the expiration of this period of fifteen days unless by order of the court upon application and sufficient cause shown for the delay. Three months after the entry thereof the interlocutory judgment shall become the final judgment as of course unless the decision of the court or report of the referee shall require and the interlocutory judgment shall provide for the entry of final judgment or unless for sufficient cause the court in the meantime shall have otherwise ordered. If the interlocutory judgment provides for the entry of final judgment such final judgment must be entered within thirty days after the expiration of said period of three months and can not be entered after the expiration of such period of thirty days except by order of the court on application and sufficient cause being shown for the delay. The interlocutory judgment may, in the discretion of the court, provide for the payment of alimony until the interlocutory judgment becomes final or until the entry of final judgment; it may include a judgment for costs, when costs, are awarded, in which case said judgment for costs shall be docketed by the clerk, and thereupon shall have the same force and effect as if docketed upon the entry of final judgment therein, except that it shall not be enforceable by execution or punishment until the interlocutory judgment becomes the final judgment or until the entry of final judgment in said action.

Amended by L. 1919, ch. 277.

Section 1774 of the Code of Civil Procedure, which requires: the final decree in an action for absolute divorce to be entered. within thirty days after the expiration of three months from the entry of the interlocutory decree and prohibiting a later entry thereof, except by order of the court on sufficient cause for delay being shown, is based upon public policy and the parties to such action will not be permitted to ignore or evade it. The entry of the final decree will be denied where application for entry was not made until over two years after the entry of the interlocutory decree and the only excuse is that the plaintiff agreed with his attorney that it should not be entered until he had paid in full for legal services. Entry of the final decree will be denied although the defendant does not oppose the application therefor. Kellogg v. Kellogg (1918), 183 App. Div. 236, 171 N. Y. Supp.

39.

Provisions of section 724 of the Code of Civil Procedure are not amended or their scope and force curtailed by the provisions of section 1774, and the court upon the return of a motion for final judgment or at any time prior to its entry may refuse to grant final judgment, open the interlocutory judgment and allow an amendment of the pleadings. Wood v. Wood (1913), 141 N. Y. Supp. 929.