SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
*fn*: July 21, 1969.
WILLIAM P. WESTERVELT, JR., APPELLANT,
CAROLE WESTERVELT, RESPONDENT
In an action for divorce on the ground of adultery plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered September 4, 1968 after a non-jury trial, which, inter alia, dismissed the complaint.
Rabin, Acting P. J., Benjamin and Kleinfeld, JJ., concur; Munder and Martuscello, JJ., dissent.
Judgment affirmed, with costs. Munder and Martuscello, JJ., dissent and vote to reverse the judgment and grant plaintiff a judgment of divorce on the ground of adultery.
We are of the opinion that the evidence at bar, as a matter of law, established the elements of opportunity, inclination and intent to commit adultery on the part of defendant.