Steffens v. Steffens

This action was brought by plaintiff for a divorce from the defendant on the ground of her alleged adultery. The defendant in her answer denies the commis

Careful scrutiny and consideration of the case on appeal fail to disclose any error in the conclusions of the referee, either upon questions of fact or of law.

The exception of the plaintiff to the admission of the defendant’s testimony in denial of the attempted proof of her adultery is not well taken. By section 831 of the Code of Civil Procedure, as amended in 1887, a party to an action for divorce charged with the commission of adultery is competent as a witness on Jjis own behalf to disprove the charge. This does not mean that.the party is limited to a bare denial of the charge. He may testify to any facts or circumstances tending to disprove the facts and circumstances advanced to support the charge or to avoid the inferences to be drawn therefrom (I rsch v. Irsch, 12 Civ. Pro. Rep. 181).

A more serious question, however, arises on the sufficiency of the evidence relied upon by the plaintiff as corroborative of the testimony of Hiram Bull, the alleged paramour of the defendant.

■ The evidence submitted on this appeal fails to disclose any successful attempt by the plaintiff to substantiate the charge of adultery against the defendant, either circumstantially or directly, other than by the testimony of the alleged paramour. And a paramour, being particeps criminis, has always been classed with other accomplices whose testimony is relied upon to prove the guilt of the accused, and whose testimony has always been held to be subject to the same objections. One of these objections is that the testimony of an accomplice should not be deemed sufficient to warrant conviction, unless

Since the amendment of section 831 of the Code of Civil Procedure permitting either the husband or the wife to become a witness in an action brought by the other to procure a divorce on the ground of adultery for the purpose of disproving the charge of adultery, the force of the reason requiring corroboration of the alleged paramour’s testimony has been considerably weakened. And the sufficiency of the alleged paramour’s testimony must now depend mainly upon the degree of credibility a judge or jury sees fit to attacli to it. And since such amendment, the refusal, of the person charged with adultery to deny as a witness on his or her own behalf the truth of the alleged paramour’s testimony, may of itself be considered corroboration of that testimony. So, also, proof of the lewd, lascivious and lustful disposition or inclinations of the person charged with adultery may be sufficient corroboration of the alleged paramour.

The consideration of the question of corroboration, however, does not appear to be applicable to the present cáse. I fail to discover in the evidence submitted any. proof of lewd or lascivious inclinations on the part of the. defendant, outside of the testimony of Hiram Bull, to which I shall again refer.

The occurrences participated in by the defendant in the villages of Hillsdale and of Monroe, where she and Hiram

The circumstances relied upon to establish the lustful disposition of the defendant in Pfeiffer v. Pfeiffer ( 9 N. Y. Supp. 28 , 27 N. Y. St. Rep’r 56 ) were much stronger than those relied upon in the present case ; yet the court held in that case that, though the acts of. the defendant might appear suspicious and improper, if they were capable of an innocent interpretation, they must be so construed; a proposition which the presumption of innocence in the absence of proof of guilt makes imperatively applicable.

Hiram Bull, the alleged paramour, testified to undue intercourse with the defendant in open fields in the night time in or- near the village of Monroe; but it was not even-attempted on the part of the plaintiff to show -by the testimony of any other witness that the defendant and Hiram Bull, at or about the times stated by him, were seen in or near the fields mentioned.. And this case is also wholly barren of -proof tending to establish amorous conduct between Hiram. Bull and the defendant, or a criminal attachment on the part of the latter for the former. Nor have I failed to observe that, for the purpose of establishing such conduct and attachment, the plaintiff lays great stress upon one occasion when the

Such evidence, so far as it relates to Byrnes and is explained by his uncontradicted testimony and the testimony of the defendant, amounted to nothing more than the acceptance of mere conventional gallantry extended to the defendant by him. And the incident of the letter from the defendant to the plaintiff, falsely representing that she had not visited New York on the occasion of her trip there accompanied on the railroad train by Byrnes from Hillsdale to the Grand Central Depot, convicts her of falsehood, but of nothing more. It is true that it may seem unaccountable that she should have been guilty of this falsehood, but is it a just or reasonable

The other acts of undue familiarity with persons other than her husband consisted of suffering herself to be kissed by a Mr. Forbes, a Mr. Sayre, and a Mr. Harrison Bull, on the occasion of social festivities at the latter’s house, and while participating' in harmless games common to the people of Monroe. In participating in these games without the presence or the previous sanction of her husband, the defendant may have been indiscreet, but I am utterly unable to share the view that such indiscretion tends to convict the defendant of marital infidelity.

Other incidents urged by the plaintiff as corroborative of Hiram Bull’s testimony were that on one occasion she kissed one Everitt McDonald, who was residing at her husband’s house, and that on another occasion, and while McDonald was confined to his bed by illness, but without any attempt at secrecy, she entered his bedroom, remaining there but a very short time, her servant Margaret Flynn being in an adjoining room all the time, and knowing of her presence in the bedroom. In the light, however, of the uncontradicted testimony for the defense that McDonald was a near relative of the defendant, I would hesitate to convict her of adultery even though she may not have denied these incidents.

The attempted proof of misconduct with Gibbs seems to rest exclusively on the surmises of the defendant’s servants Margaret Flynn and' Margaret Neville, seemingly without justification. It appears that Gibbs resided with his mother on Fifty-seventh Street near Ninth Avenue, in the neighborhood of plaintiff’s residence; that liis place of business 'was in the lower part of New York; that he was in the habit of taking the cars for down town at or near the corner of Fifty-seventh Street and Ninth Avenue, at which place the defendant’s servants, from the rear windows of plaintiff’s apartments on Fifty-eighth Street corner of Ninth Avenue, had frequently seen him standing; that on several occasions these

The evidence as to alleged undue familiarity with and as to correspondence between the defendant and Faircloth exists only in the testimony of the defendant’s servants, to the effect that the defendant had admitted to them that she had entertained an affection for Faircloth and had maintained a correspondence with him, and that, on the occasion of her visits to her aunt, Mrs. Phelps, in Jersey City, she had met Mr. Faircloth at her aunt’s where Mr. Faircloth and his wife were lodgers. I fail to see anything suspicious in these meetings between the defendant and Faircloth, and in view of his most- positive denial of ever having received any letters from the defendant, and the defendant’s equally positive denial of ever having corresponded with him, and also her denial of her ever having admitted to them an affection for him, I am not inclined to place any reliance upon the testimony of the servants as to these admissions. Such testimony does not directly establish the -facts alleged to have been admitted. The accuracy of the repetition of admissions is dependent entirely upon the witness’ intelligence, the reliability of his recollection, the correctness of his understanding, the difficulty of imparting the inflections or deflections of voice, and the gestures accompanying the alleged admissions, the reproduction Of all of which is essential to correctly convey the meaning of language employed in making the alleged admissions. Such testimony has always been regarded as evidence of the lowest order, to be accepted only with jealous caution. (1 Greenleaf on Evid. § 20).

The testimony of Hiram Bull, the alleged paramour, bristles with improbabilities, and should be rejected even though corroboration should not be requisite. It is difficult to understand how a lady of culture and refinement, such as the evidence

I desire in this connection also to call attention to the fact that the evidence shows that, after the institution of this action and subsequent to the time when, as is alleged, the plaintiff had acquired knowledge of the betrayal of his wife by Hiram Bull, and that the felicity of his home was terminated by her betrayal by him, he seems to have harbored the alleged paramour as a welcome visitor, and to have hospitably entertained him for several days. It may be that the plaintiff believed that to secure the testimony of the alleged paramour it was prudent to maintain apparently friendly intercourse with him for the time being, but if so, it scarcely justifies the claim of plaintiff’s counsel, that, inspired by a higher standard of morality of recent acquisition, and impelled by a spirit of repentance and a desire for atonement, Hiram Bull sought to make all possible reparation to the injured husband, and came forward voluntarily to confess his share in the wrong and assist the plaintiff in ridding himself of an unfaithful wife.

Izz the present case the referee, in his opinion accompanying the report, places his disbelief of the testimony of Hiram Bull, not only upon the inherent improbability of the truth of his statements, but also upon the manner and conduct of the witness while under examinatiozi and his demeanor when giving his testimony. In such cases, izi the absence of apparent injustice or gross and flagrant disregard of the evidence, the appellate court should not interfere.

In Westerlo v. De Witt ( 36 N. Y. 344 ), Judge Hum says : “ The genez’al dispositiozx of the courts is to sustain the referee in his findings of fact. This is not precisely the same question as if we were inquired of whether we should have- found the same facts and have determined the law in the same manner. It is, rather, are we so certain that the referee was in error upon the facts that we will assume to reverse his judgment. If the case is doubtful, the conclusion should not be reversed; if, upon reading the evidence, this court should be of the opinion that the conclusion might well have beén either way, then the fact that the referee saw the witnesses, heard them testify, and had the nameless opportunities of judging of their character that personal acquaintance can only give should induce us to defer to his judgxnent.” See, also, Baird v. Mayor ( 96

The judgment appealed from should be affirmed, with costs.

J. F. Daly, J., concurred.

Judgment affirmed, with costs.