Ivison v. Ivison — 61 N.Y.S. 118

Majority

p. 118

(29 Misc. Rep. 240.)

IVISON v. IVISON.

(Supreme Court, Special Term, New York County.

October, 1899.)

Headnote

Divorce—Action by Wipe—Absence prom Trial—Connivance.

Where, in an action for divorce brought by a wife on the ground of adultery, the wife did not appear at the trial, and the adultery was testified to by defendant and the co-defendant, the court is not warranted in granting a divorce, in the absence of evidence that the action was not brought by defendant’s procurement, and that plaintiff desired a divorce.

Action for divorce by Florence G. Ivison against Henry Ivison.

Charles T. Saxton, for plaintiff.

This is an action for an absolute divorce, purporting to be instituted by the wife against the husband. The defendant has allowed his default to be taken. The wife has not been called as a witness, nor is any reason given for her absence. The only witnesses are the defendant and the co-respondent, who testify to the defendant’s adultery. No alimony is asked; There is no evidence of the statutory requirements of an absence of connivance, privity, or procurement on the part of the plaintiff, nor even of a desire on her part for a divorce. Under these circumstances, the court is not warranted in granting a decree of divorce. The trial will be adjourned until the second Wednesday of November next, when the plaintiff will have an opportunity to be heard, and both parties given an opportunity to convince the court of an absence of' connivance or of fraud. An order may be entered restoring the cause to the calendar, and setting it down for trial on November 8, 1899. Ordered accordingly.