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WILLIAM P. WESTERVELT v. CAROLE WESTERVELT (07/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


*fn*: July 21, 1969.

WILLIAM P. WESTERVELT, JR., APPELLANT,
v.
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.

No opinion.

Disposition

 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.


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