Emerson v. Emerson — 42 N.Y. St. Rep. 562

Majority

p. 562

Jennie Emerson, Resp’t, v. Frank Herbert Emerson, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Divorce—Adultery.

Proof of association with, prostitutes, and that defendant gave secret entertainment to women in the night time in his own rooms in the absence of his wife, is sufficient to justify a finding of adulterous intercourse.

Appeal from judgment in favor of plaintiff.

Action for divorce on the ground of adultery. There was. no direct evidence of the acts of adultery, but a witness testified that he introduced defendant to a prostitute in a saloon ; that they left the saloon and were gone an hour, and that defendant said he had had a nice time and it cost him three dollars. Other witnesses testified that during plaintiff’s absence from home ladies were admitted to defendant’s rooms, and on one morning the servant found the remains of an entertainment in the rooms, the bedding disarranged and articles indicating sexual intercourse, and she testified that defendant became excited when he found she had taken them away, and tried to explain that they were for a different purpose.

J., W. Ridgway and W. J. Gibson, for app’lt; A. H. Dailey,. for resp’t

is an action for a divorce on the ground of’ adultery, brought by the wife against her husband. The trial

p. 563

was before a judge, without a jury, and he found the defendant guilty and granted the plaintiff an absolute divorce.

The defendant has appealed from the judgment, and insists here, as he did upon the trial, that the evidence was insufficient to establish his guilt.

A careful examination of the testimony conducts the mind to a conviction of the guilt of the defendant. There is no positive proof of any act of adultery, but the circumstances and facts developed by the testimony all point in one direction, and they are entirely inconsistent with the innocence of the defendant.

Innocent and virtuous men who entertain a proper regard for their marital obligations do not voluntarily place themselves in the equivocal positions occupied by this defendant.

They do not associate with prostitutes and give secret entertainment to women in the night time in their own rooms, in the absence of their wives, and when such conduct is proven it leads irresistibly to a conclusion of guilt.

Men do not violate their marriage vows openly. They commit their wrongs with companions of their secret hours, and partners in their guilt, and positive proof is not often attainable.

In such cases, as in all others, therefore, resort may be had to circumstantial evidence, which is sometimes quite as satisfactory as positive proof.

A full and careful examination of all the testimony leads us to the conclusion reached by the trial judge, and the judgment ■should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.