Greene's Case — 8 Abb. N. Cas. 450

Majority

p. 450

GREENE’S CASE.

N. Y. Supreme Court, Second District; Second De partment, Special Term,

November, 1880.

Headnote

Leave to Mabry Again After Divorce.

Under 3 JR. 8. 144, ,§ 49, as amended by L. 1979, p. 331, c. 164, and L. 1879, p. 405, c. 321, which provides that whenever a marriage has leen or shall be dissolved ... no defendant .convicted of adultery shall marry again until the death of the complainant, .unless the court .... shall in that respect modify such judgment .... upon satisfactory proof that the complainant has •remarried, that five years have elapsed since the decree of divorce was rendered, and that the conduct of the defendant, since the dissolution of said marriage, has been uniformly good,^[2] —leave is not to .bo refused merely because the petitioner, having been divorced by

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reason of cohabitation with another woman, under color of avoid marriage, by whom he had a child, continued, after the divorce, to cohabit with her.

Where it appeared that the continued cohabitation was continued with apparent decency, and in part for the sake of the child, until terminated by dissension ; and the petitioner expressed a readiness to support the child,—Held, that leave should be granted.

On a conflict of evidence on a charge of fornication, a finding that his conduct has been “ uniformly good ” may be sustained.

Petition for leave to marry again after divorce.

Elizabeth M. Greene procured a divorce in the supreme court of this State in 1870, on the ground of the adultery of her husband, George W. Greene, in marrying a second wife, Arminia Mirserly. The plaintiff subsequently married again ; the defendant continued to cohabit with his second wife, by whom he had a child. In 1879, more than five years having elapsed, the defendant applied to the court by petition, for leave to marry again. The facts appear more fully in- the opinion of Edward Wells, Eeferee, below.

The petition was referred to Francis Larkin, Esq., ■ to take testimony and report his opinion.

He reported in favor of the petition; his opinion was to the effect that it was better, in view of the petitioner’ s condition, to permit him to marry, and that his conduct had been uniformly good within the meaning of the statute.

On the report the court (Gilbert, J.), at special term, granted the petition.

IV. H. Baiter, district attorney of the county, then applied on behalf of Arminia Greene, claiming to be his second wife, and upon her affidavit, for an order to show cause why the order granting leave should not be vacated. Her affidavit was to the effect that the-original application was ex parte, and without notice

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to her ; that she had married the petitioner legally, in ignorance of his former marriage; that since the divorce had been granted, she and the petitioner had continued to cohabit together, the petitioner holding her out as his wife, and they had a son of the age of nine years, the issue of their cohabitation ; that the petitioner had been having illicit intercourse with a third person’s wife, and had declared his intention to marry the latter as soon as she could get a divorce.

Gilbert, J., at special term, thereupon set aside the order giving leave, and referred the petition to Edward Wells, Esq., to take proof and report with his opinion, with a direction that the petition might be brought to hearing on five days’ notice to the district attorney by the petitioner, or by five days’ notice from the district attorney to the petitioner.^[2]

The referee, upon the second reference, made report to the following effect:

I have been attended from time to time by the petitioner and his attorney and counsel, Mr. William G. Valentine, and by Mr. N. Ii. Baker, .the district attorney of Westchester county, on behalf of the people, and of Arminia Mirserly (called also Arminia Greene). And I have taken all the testimony and proofs offered by the respéctive parties.

The principal witness who testified as to any unchaste or improper conduct of the petitioner, were the said Arminia and Charlotte Wilkes, a colored girl. The former testified to sexual intercourse between the petitioner and Mrs. Kate A. Searls, under strange and not very probable circumstances, but Mrs. Searls testified that the charges were entirely untrue, and that no such intercourse ever took place. And I consider the testimony on that subject as balanced, to say the least, and in my opinion the charge is not sustained.

Charlotte Wilkes, a young colored girl,' was produced and swore to sexual connection between herself and the petitioner, but afterwards, at a later hearing of the case, she came upon the stand and retracted all her testimony on that subject, and swore it was false, and that she knew it was false, and that she was induced to testify as she did at first, by the request and promise of Arminia Mirserly, and that she had received from Arminia a pair of bracelets, to induce her to testify against the petitioner. I consider the testimony of this girl totally unworthy of credit, and that it should be rejected and disregarded.

Aside from the testimony of the two females, there is nothing to impeach the conduct of the petitioner since the divorce was obtained by his former wife, Elizabeth M. Greene, more than five years ago, except that he continued to live with Arminia, whom he had married before the divorce, and by whom he had a son, now aged about ten years. This cohabitation seems to have been conducted with external decency, and in part for the

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sake of the child, until differences sprang up between them, when they separated, and all intercourse between them ceased some time before he presented his petition in this matter. The petitioner expresses his readiness to take upon himself the support and care of the child, if the mother will consent thereto.

The petitioner is shown to be an industrious and honest man in business matters, and carries on the business of a meat butcher in the village of Sing Sing, in Westchester county.

While the petitioner’s conduct may not have been as circumspect and prudent as might be expected of better educated persons, yet, considering his condition and circumstances in life, I am of the opinion that his conduct has been uniformly good within the meaning and intent of the law, and that, as his former wife, Elizabeth M., has married again, he should be permitted and encouraged to marry and re-establish a home and a household, as he is only thirty years old.

Annexed to his report was the testimony.

William G. Valentine, for petitioner.

GIilbebt, J., confirmed the report and granted the .petition.