Shaw v. Shaw — 155 A.D. 252

Majority

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Gertrude L. Shaw, Respondent, v. William Barrett Shaw, Appellant.

Second Department,

February 14, 1913.

Headnote

Husband and wife — divorce — evidence — circumstantial evidence — judicial notice of proceedings in action which appear from records.

Action for divorce. Evidence examined, and held, that an interlocutory judgment in favor of the plaintiff should be affirmed.

As adulterous acts are naturally secret and clandestine, proof thereof may be circumstantial and indirect.

Although the Appellate Division may take judicial notice of proceedings in an action which appear from its own records, it cannot on appeal by a defendant from an interlocutory decree of divorce take judicial notice of medical testimony which was taken on behalf of a corespondent as a basis for an application for a jury trial on the issue of her culpability, the order denying which trial was affirmed on a former appeal.

Appeal by the defendant, William Barrett Shaw, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Kings county on the 28th day of May, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, in an action for divorce.

William Ford Upson [ William Forse Scott and Francis J. McLoughlin with him on the brief], for the appellant.

Robert F. Manning, for the respondent.

We should not disturb the judgment. As adulterous acts are naturally secret and clandestine, so proof thereof may naturally be circumstantial and indirect. But that kind of proof, legally speaking, is not necessarily described as conjecture, surmise, guess or speculation, and the proof in this case is not thus to be catalogued, and hence condemned. While there is no proof of the specific act, even the undisputed evidence affords every indication of guilty relations at the time and place specified. It is of course possible that the act itself was not committed, but cogent appearances were entirely ■ against any probability that it was not, and such a possibility

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was suggested only by the denials of the parties themselves, accompanied by explanations which seem to us incredible.

This court, however, may take judicial notice of certain proceedings in this action which appear from its own records. (Farmers’ Loan & Trust Co. v. Hotel Brunswick Co., 12 App. Div. 628 ; People ex rel. Platt v. Rice, 80 Hun, 442 ; 4 Wig. Ev. 3615; Beers’ Steph. Dig. Ev. [N. Y. ed.], 252, 253; 1 Rice Ev. 18, 19; 1 Chamberlayne Mod. Law of Ev. 849, 850.)

After the interlocutory judgment in favor of plaintiff was signed a motion was made to set it aside, and the corespondent obtained an order to show cause why she should not be examined by a physician or physicians to be appointed by the court. An order was entered appointing a woman physician to examine the alleged corespondent as to her virginity. That examiner reported in an ambiguous way at first, and then made a supplemental report that the corespondent might or might not be a virgin, adding, “ Being in doubt, I cannot condemn her.” After the denial of the said motion the corespondent applied at Special Term for an order to settle the issue of fact herein for trial by jury. She submitted affidavits of three physicians, who went into the details of their examinations. One deposed that her general appearance was that of a virgin, and two that in their opinion she was a virgin. The order was denied, and on appeal was affirmed December 30, 1912, with the following memorandum: “This order is affirmed for the reason that there is an interlocutory judgment herein. But the affirmance is not upon the merits, and is without prejudice to an application to the Special Term to set aside or to vacate or to open the interlocutory judgment, or the final judgment if it has been entered herein, and for the relief sought for by this motion.” ( 154 App. Div. 907 .) Although, as I have said, the court may thus notice its records, yet it cannot, I think, consider that such medical testimony is in this record now up for review. (Chamberlayne Mod. Law of Ev. supra, citing Cleveland, Columbus, Cincinnati & Indianapolis R. Co. v. Wynant, 134 Ind. 691 .)

The possibility of innocence might have prevailed to judgment if the denials had been supported by such medical evidence. Indeed, the opinion of the court begins: “ Upon the

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trial I entertained no doubt that the purpose of the defendant respecting the corespondent were {sic) adulterous, but I hesitated to believe that purpose shared by her. I give no credit to the evidence of the detectives so far as they are contradicted nor to the evidence of Mrs. Haggerty. But reflection leads me to abandon my notion of the corespondent’s possible innocence of intention which has been from the first the only saving circumstance in the case.” And we cannot say that the corespondent might not he relieved from stigma if this proof were adduced upon a trial of the issue of her adultery. We do not mean to control any action of the Special Term if the application for such trial he made once again upon as cogent a showing, hut we think it not amiss to say that such application may well receive serious consideration without regard either to prior disposition or to this affirmance.

The judgment must be affirmed, with costs.

Hirschberg, Thomas, Oarr and Rich, JJ., concurred.

Interlocutory judgment affirmed, with costs.