Jayne v. Jayne — 5 Misc. 307

Majority

p. 307

Jayne v. Jayne.

(New York Superior Court—Equity Term,

October, 1893.)

Headnote

In an action by a wife for separation, the defense was a denial and a counterclaim of adultery on plaintiff’s part. The counterclaim was satisfactorily proved by the depositions of two witnesses, one of whom was a married daughter of the parties to the action. A letter from plaintiff . to a man .other than her husband, concluded as follows-' “Yours as to none other.” It also appeared that the door connecting plaintiff’s bedroom with the room of the co-respondent was unfastened, and the door to the husband’s room was bolted. Meld, that defendant was entitled to a decree for absolute divorce.

Action for separation on the ground of abandonment. Defense, denial of the abandonment charged and counterclaim for absolute divorce. Trial of the issues.

A. P. Wagener, for plaintiff.

Thomas H. Bullick, for defendant.

The action is by the wife for a judicial separation on the ground of abandonment. The defense is a denial of the alleged abandonment and a counterclaim for an absolute divorce on the ground of adultery. Oode, § 1770.

p. 308

The parties consented that the counterclaim be tried first on their concession that, if guilty of adultery, the plaintiff is entitled to no relief. The main evidence offered by the defendant is contained in the depositions of Sarah E. Wilkes, and of Florence J. Gates, a daughter of the parties to the record, and these satisfactorily prove improper intimacy between the plaintiff and one Zewalthoff, the co-respondent named in the answer.

In addition to this, the letter written by the plaintiff to Dr. Dwight Smith is significantly strong in this, it proves what is spoken of in 2 Greenleaf’s Evidence, section 41, as an adulterous disposition. It certainly shows the bent of the plaintiff’s mind and reflects her inclinations. The suggestions in the letter indicate an attempt to hoodwink her husband, and the closing sentence, “Yours as to none other,” is one which no married woman of mature years should write to a man other than her husband.

The plaintiff put a bolt on the door which separated her bedroom from that of the husband, but left the door connecting her bedroom with the co-respondent’s room unfastened. This is very suggestive, and corroborative • of the testimony contained in the depositions. While it was considered necessary to bar the husband from her bedchamber, it was deemed unnecessary to exercise like precaution against the co-respondent.

Every act of adultery implies three things: First, the . opportunity; second, the disposition in the mind of the adulterer ; third, the same in the mind of theparticeps criminis. And the proposition is substantially true that whenever these three are found to concur, the criminal act is committed. Bishop Mar. & Div. (4th ed.) § 619. The combination suggested has been established in this instance. The testimony of the co-respondent offered by the plaintiff does not help her case. • She assisted in establishing him in business with the proceeds of sale of the husband’s property. Their relations were altogether too intimate. There can be little doubt about bis inclinations. In proving adultery, other like offenses, not

p. 309

charged, may be shown in corroboration of the specific act complained of, not as independent testimony, but as tending to characterize the improper intercourse between the parties alleged in the bill. 1 Am. & Eng. Ency. of Law, 214, and cases cited; Lawson v. State, 56 Am. Dec. 182 ; State v. Bridgman, 24 Am. Rep. 124 ; 2 Greenl. Ev. § 47; Bishop Mar. & Div. (4th ed.) § 625. Where a daughter of mature years bears witness to her mother’s infidelity, there is strong reason to believe the charge. Nature has made her the loyal friend of the mother. The parties were married — not mated. Their natures and dispositions are dissimilar. She, educated, bright, smart—even unto cunning. He, phlegmatic, slow, careworn and cautious. If she had been the man and he the woman, he would have made a better follower. He was certainly a poor leader. It is evident that she never looked up to him for guidance, and never smiled upon him with favor. Incompatibility, to a large extent, is responsible for what has followed. Upon the evidence, carefully weighed and considered, the defendant is entitled to a decree for absolute divorce.