Prytherch v. Prytherch

In an action by a husband against his wife for divorce: (1) the wife appeals from a judgment of the Supreme Court, Nassau County, entered May 5,1964 in the husband’s favor; and (2) the husband cross-appeals from so much of said judgment as awarded to the wife an additional counsel fee of $2,500. Judgment, insofar as appealed from by the respective parties, affirmed, without costs. It is our opinion that the record presents, primarily, a question of fact as to whether the plaintiff husband condoned the defendant wife’s offenses, and that the trial court’s finding in the plaintiff’s favor on the factual issue should not be disturbed (cf. Amend v. Uwley, 293 N. Y. 587, 594; Merrill v. Merrill, 41 App. Div. 347, 349, 350). We are also of the opinion that defendant may not now urge that her testimony in support of her defense of condonation was incompetent under the statute (CPLR 4502, subd. [a]) and therefore should not have been received. That testimony was admitted over plaintiff’s objection and on defendant’s insistence that it was competent. Assuming, without deciding, that the testimony was incompetent, we believe that defendant should not be heard to complain of error induced by her counsel (9 Carmody-Wait, New York Practice, pp. 70-72; Shalet v. Stoleff, 135 App. Div. 376, 379-380). Moreover, even if the evidence was incompetent, the testimony was favorable to defendant and she was in no way prejudiced by its admission; and the judgment, therefore, should not be reversed on that ground (cf. Becker v. Laitin, 23 Mise. 756). It is also our opinion that the award of $2,500 as an additional counsel fee was proper, under the circumstances presented. (For prior appeals in this action, see 20 A D 2d 721; 21 A D 2d 680; and 22 A D 2d 706.) Beldock, P. J., Ughetta, -Christ, Brennan and Hill, JJ., concur.