Dickinson v. Dickinson

tionof adultery on the part of the defendant. It appeared in evidence that the defendant had procured a decree of divorce against the plaintiff in Illinois. After procuring the decree referred to, the defendant married again, and the adultery charged is his cohabitation with the woman to whom he claims to have been so married. The present plaintiff, basing her action upon that alleged adultery, was called as a witness on her own behalf. She had set up in her complaint the jurisdictional facts required in actions of this character. She averred that the plaintiff and defendant had been actual inhabitants of the state of Hew York, and that “this plaintiff for eight years last past has been and now is an actual inhabitant of the city, county, and state of Hew York.” The action was commenced in June, 1889. The adultery charged is alleged to have been committed at various times since the 15th day of August, 1887. The answer denies the residence of the plaintiff, and puts it in issue, both as to the time of the alleged commission of the acts of adultery charged upon the defendant, and at the time of the institution of this action. The plaintiff was allowed to testify, under objection and exceptions, as to her residence, in both aspects in which that subject became material on the trial. The qualifications of a husband or wife to bring an action for divorce in this state, and the grounds upon which a decree may be pronounced, are matters of positive legislation. That was expressly decided in Erkenbrach v. Erikenbrach, 96 N. Y. 456 . As to the right to sue, it is regulated by the Code of Civil Procedure. When, as in the present case, there is sought a divorce a vinculo, on the ground of adultery, it is provided by section 1756 of that Code that, when the parties were not both residents of the state when the offense was committed, and where they were not married in this state, where the offense was not committed in this jurisdiction while the injured party was a resident therein, (and such is this case,) the plaintiff must have been a resident of this state when the offense was committed and also when the action was brought. As lying at the very foundation of the suit, therefore, it was necessary to establish two jurisdictional facts, and they were distinctly put in issue. The general averment of the complaint that the plaintiff had resided in the state of Hew York for eight years before the commencement of her present action covers both requirements as a matter of pleading, but, when the record is critically examined, we cannot find any sufficient proof of that allegation besides the plaintiff’s own testimony. There were three other witnesses called on that subject, viz., Albert S. Dickinson, Henry P. Huling, and Mary Roberts; but it is quite clear that their testimony is utterly inconclusive on the subject, and, if there had been no other testimony than theirs, it would not have been an erroneous finding of fact had the learned judge determined that, when the acts of adultery complained of were committed, the plaintiff resided in Hew Jersey, and not in Hew York. The only real testimony as to residence at the times last referred to is that of the plaintiff herself, and it seems too plain for argument that, under section 831 of the Code of Civil Procedure,^[1] she was incompetent to testify to anything involved in her right to a decree, except as to marriage, and to disprove any charge of adultery against herself. Jurisdictional facts must be provenas well as merits, when they are put in issue, and there was clear error in allowing the plaintiff to testify as to those facts. The inhibition of the statute applied, and we cannot say that it was not that very testimony which induced