Majority
p. 21Bertha Welke, App’lt, v. Rudolph Welke, Resp't. (Supreme Court, General Term, Fifth Department, Filed January 22, 1892.)
Headnote
Divorce—Adultery—Evidence.In an action for divorce the only evidence tending to establish the charge of adultery, other than that an unmarried woman was housekeeper for defendant, who was living apart from liis wife, was the testimony of four men who gained access to defendant’s apartments on frivolous pretexts. Their testimony, so far it tended to show illicit relations between ■defendant and the woman, was denied by him and the woman. The men testified that their visits had no 'reference to an action for divorce; that .they did not know one was contemplated, and that they went there for the purposes mentioned. Held, that if the referee was convinced that their testimony in that respect was false, he had a right to reject their whole testimony as unworthy of credit, and that his finding that the fact of adultery was not proved was amply justified.
Appeal by the plaintiff from a judgment dismissing her complaint, entered on an order of the Monroe special term confirming •the report of a referee, and directing judgment in accordance •.therewith.
G. M. Allen, for app’lt; IT". F. Rampe, for resp’t.
The action was for a divorce on the gronnd of •adultery. The parties were married in 1885, but lived, together only a few weeks, and both have, apparently, been content to live separately since that time.
p. 22
One conceded fact in the case no doubt suggested to the plaintiff, or her advisers, the bringing of an action for an absolute divorce. That was the fact that for some months before the action-was brought the defendant had living with him, as the only other-member of his household, an unmarried woman of about his own age, in the ostensible relation of housekeeper and domestic servant. This fact was calculated to excite suspicion, but was, of course,, insufficient in itself to establish the charge of adultery. The only additional evidence tending to support that charge was furnished by the testimony of four men, entire strangers to the defendant, who gained access to his house, two of them in the evening, and three of them at midnight a week later, under pretenses so shallow and absurd as .to stamp these domiciliary visits with the-character of gross outrages upon the privacy of the home. The-referee undoubtedly rejected those pretenses as false, and believed that the sole purpose of the visits was to obtain evidence in sup-port of the plaintiff’s action which was, shortly after, commenced. But, what is of more consequence, these persons on the trial of the action had the hardihood to insist, on their oaths as witnesses,, that their visits had no reference to an action of divorce; that, they did not know that such an action was contemplated, and that their several invasions of the defendant’s home were made for the-purposes avowed at the time. So that if the referee was convinced that the excuses for the visits were falsely pretended, he must have found that their testimony in that respect was false and, in that case, he had the right to reject the whole of their testimony as unworthy of credit. Pierson v. The People, 79 N. Y., 424 . Moreover their testimony, so far as it tended to show illicit, relations between the defendant and the woman living with him, beyond the fact that they were the only occupants of the apartments which constituted the defendant’s home, was directly contradicted both by him and by the woman, except that the latter, who did not understand English, was unable to testify to the conversation between the defendant and his visitors.
On this state of the evidence, the finding of the referee that the fact of adultery was not proved was amply justified, and the-complaint was properly dismissed.
The judgment should be affirmed.
Macomber and Lewis, JJ., concur.