Westervelt v. Westervelt

Jasen, J. (dissenting).

I agree with the dissenting Justices at the Appellate Division that the judgment of the trial court denying the plaintiff a divorce from the defendant on the ground of adultery should be reversed, as a matter of law.

*867To establish adultery by circumstantial evidence, the plaintiff need only show a lascivious desire and the opportunity to gratify it. (Kay v. Kay, 235 App. Div. 25.) The court, considering the circumstances as a whole, must be convinced that the parties’ acts are more consistent with guilt than innocence and cannot refuse to give the circumstances their…