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WESTERVELT v. WESTERVELT

26 N.Y.2d 865 (1970)

William P. Westervelt, Jr., Appellant, v. Carole Westervelt, Respondent.

Court of Appeals of the State of New York.

Decided March 5, 1970.

Attorney(s) appearing for the Case

Richard H. Wels, William D. Sullivan and Stephen J. Schaeffer for appellant.

Ira W. Levy for respondent.

Concur: Chief Judge FULD and Judges BERGAN, BREITEL and GIBSON. Judge JASEN dissents and votes to reverse in the following opinion in which Judge SCILEPPI concurs. Taking no part: Judge BURKE.

Order affirmed, with costs.

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.

To establish adultery by circumstantial evidence, the plaintiff need only show a lascivious desire and the opportunity to gratify...

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