Roth v. Roth

The evidence of defendant’s adultery is ample to sustain the verdict and decision.

Two exceptions require consideration. One of the issues submitted to the jury was whether the defendant committed adultery with the co-respondent on the 3d day of July, 1901, at No. 235 Brook avenue; and another issue was as to whether she committed adultery at the same place with the co-respondent between the 9th day of September and the 20th day of December in the same year; and a third issue was whether she had committed a similar act with the co-respondent at a cottage in Patchogue. There was satisfactory circumstantial evidence of her commission of adultery with the corespondent at the place mentioned on the 3d day of July, 1901, but this had been condoned. There was ample evidence that she and the co-respondent had been together at the same place between the 9th day of September and the 20th day of December, 1901, and at Patchogue at the time specified, under circumstances affording an opportunity for the commission of similar acts. The court received evidence tending to show, and sufficient to justify the inference, that during a night shortly after the 6th of July, 1901, the co-respondent occupied a bedroom with the defendant at said No. 235 Brook avenue. This evidence was received under defendant’s objection and exception that it was not within the issues, and that evidence of specific acts of adultery, other than those specified, was inadmissible. The judgment is not predicated upon a finding of adultery upon that occasion. The evidence was received merely for the purpose of showing an inclination and lascivious, desire, from which the jury might infer that on the subsequent occasions when the parties were together during the period covered by the issues submitted, under cir

The learned trial justice was evidently of opinion that the rule laid down by the Court of Appeals in Pollock v. Pollock, 71 N. Y. 137 , to the effect that in an action for divorce, depending upon circumstantial evidence, where the facts and circumstances are as consistent with innocence as with guilt, or are reconcilable with innocence, the plaintiff is not entitled to recover, has been overruled by Allen v. Allen, 101 N. Y. 658 , 5 N. E. 341 . While it would seem from the opinion in Allen v. Allen, supra, that the Court of Appeals did intend to modify the doctrine of Pollock v. Pollock, supra, yet the doctrine announced in the Pollock Case has been frequently reaffirmed by the Court of Appeals in divorce cases and in cases involving issues of fraud. Conger v. Conger, 82 N. Y. 603 ; Lopez v. Campbell, 163 N. Y. 340 , 57 N. E. 501 . In Lopez v. Campbell, supra, the Court of Appeals say: “While a material fact may be established by circumstantial evidence, still, to do so, the circumstances must be such as to fairly and reasonably lead to the conclusion sought to be established, and to fairly and reasonably exclude any other hjqpothesis. Where the evidence is capable of an interpretation which makes it equally consistent with the absence as with the presence of a wrongful act, that meaning must be ascribed to it which accords with its absence. In other words, it can only be established by proof of such circumstances as are irreconcilable with any other theory than that the act was done”—and cite the Pollock Case, among others, as authority for that proposition. The doctrine of the Pollock Case to the effect here stated has recently been expressly approved by this court in Poillon v. Poillon, 78 App. Div. 127 , 129, 79 N. Y. Supp. 545 . In the Allen Case, supra, we think the Court of Appeals merely intended to disapprove of those expressions in the opinion in the Pollock Case which are to the effect that the evidence must satisfy the court or jury beyond a doubt of the guilt, and that the fact of adultery could not be found upon circumstantial evidence unless the circumstances admit of no other possible conclusion.. At the close of the charge, counsel for defendant drew the attention of the court to a request which he had submitted, but which he did not read in the presence of the jury, saying, “It is virtually what the court says in the case of Pollock v. Pollock.” To this the court replied, “That has been distinctly overruled by Allen v. Allen, 101 N. Y. 658 [ 5 N. E. 341 ], which I just read to the jury. They overruled Pollock v. Pollock.” Counsel for the defendant thereupon took an exception. This exception, in and of itself, presents no error, for it does not appear just what the court declined to charge. Subsequently counsel for the defendant specifically requested the court “to direct the jury to answer the questions presented to them in the negative, because the facts and circumstances proved by the plaintiff are reconcilable with the theory that the act had not been committed,” and to the refusal of the court to so instruct the jury an exception was taken. No error was presented by this exception, for the reason that it was a question for the jury. It could not be

“The burden is upon the plaintiff from first to last in the case. He must satisfy you by a fair preponderance of credible evidence of the propositions I have heretofore indicated to you: First, that these parties had the lascivious desire; and, second, that they had the opportunity to gratify it; and, third, that they did gratify it. That you may find as an inference. That is to say, you are not called upon to receive direct proof of the fact; but, given the desire and intent and opportunity, you may, if you are satisfied by a fair preponderance of credible evidence— If you can say it is likely and probable,

and necessarily followed from the preceding circumstances, that they did commit the act, you may find it, although no one saw it.”

We are of opinion, therefore, that these exceptions present no reversible error.

The other exceptions in the case have been examined, but require no special mention.

It follows, therefore, that the judgment should be affirmed. All concur.