Schreiber v. Schreiber

Headnote

Divorce—Adultery.

Evidence sufficient to prove the commission of adultery.

Appeal by defendant from judgment or decree of divorce in favor of plaintiff.

The following is the opinion of the court at equity term:

McAdam, J.—Adultery is peculiarly a crime of darkness and secrecy ; parties are rarely surprised in it; and so it not only may, but ordinarily must, be established bv circumstantial evidence. 2 Bishop on M. & D., 4 ed., § 613. The circumstances disclosed here were these : The defendant, who lived separate from her husband, occupied the first floor of the tenement No. 220 East Twenty-first street, this city. There wei'e two large rooms, and four bedrooms. In September last the husband (who suspected his wife's infidelity), entered the house accompanied by two friends sit about midnight; broke in one of the doors. The noise alarmed the defendant and the co-respondent, who made an outcry, and two policemen ran into the room to discover the cause. Two beds were found, one in the kitchen, the other in the bedroom adjoining. The defendant- was found in her nightdress, and the co-respondent in his undershirt. The beds were examined by the four witnesses, who substantially agree that only one of the beds had been occupied, and that had two pillows, both of which had been mussed. The bedroom door was found open so that any one could enter from it into the kitchen, and viceversa. The defendant and the co-respondent in explanation testified that the latter 'was a

lodger paying $3,.50 a week for the use of the bedroom and parlor ; that, though theré was no lock to the bedroom door, it had been tied with a rope to prevent egress to the kitchen. The first suspicious circumstance is that the rope was not found when the officers entered, nor has its disappearance been accounted for. Next it seems odd that this precaution should have been taken when the lodger might have been assigned to one of the front bedrooms, where no rope or other safeguard was needed. There were no-other lodgers. The parties have a sixteen-year-old daughter, but the defendant put her to board somewhere else. The daughter ought to have been kept at home instead of the lodger. Her presence would have allayed suspicion. Her absence and the close proximity of the lodger created it; instead of avoiding the appearance of evil, the defendant did the very thing calculated to provoke unfavorable criticism. What followed was the natural sequence. She had no right to place herself in such a perilous position. The disinterested police officers furnish such strong corroborative proof that the judicial mind is satisfied that the relations existing between the defendant and correspondent were of a criminal nature. Their appearance and manner upon the stand have much to do with this conclusion. The means afforded by a viva voce examination of judging of the credit due to witnesses, especially where .their statements conflict, are of incalculable advantage in the investigation of truth, but not unfrequently supply the only true test by which the real character of the witnesses can be appreciated. Stavkie on Ev., 9th Ed., 728. Courts must take such evidence as the nature of the case permits, circumstantial, direct or positive, and bring to bear upon it the experiences and observations of life, and thus weighing it with prudence and care give effect to its just preponderance. Moller v. Moller, 115 N.Y., 466 ; 26 St. Bep., 207; Auld v. Auld, 40 St. Bep., 904. Upon the entire evidence, carefully considered, the plaintiff is entitled to a decree for absolute divorce.