Pettee v. Pettee — 60 N.Y. St. Rep. 529

Majority

p. 529

Frank H. Pettee, Resp’t, v. Mary H. Pettee, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 8, 1894.)

Headnote

1. Divorce—Adultery—Connivance.

The law does not prevent the husband from scrutinizing the conduct of his wife, or detecting her in her voluntary violation of the sanctity of the marriage relation.

'2. Appeal—Curing error,

The striking out of improper testimony of a party on his own motion, without objection from the adverse party, cures any error in its admission.

S. Trial—Adjournment.

The granting of an adjournment while the trial is in progress is a matter of discretion with the trial court, which will not be disturbed unless abused.

Appeal from a judgment entered on an order confirming the report of a referee granting an absolute divorce.

McLaughlin & liowe(JJ. B. McLaughlin, of counsel), for app’lt; ■ S. H. Bevins (Francis A. Smith, of counsel), for resp’t.

The fact that the defendant was guilty of the adultery charged in the complaint is not, apparently, controverted by the appellant, and cannot, we think, under the evidence, be successfully denied. The real question, therefore, to be considered on this appeal, is whether the learned referee and judge at special term erred in refusing to find and decide that such adultery was committed without the knowledge, privity or consent, connivance or procurement of the plaintiff. By § 1758 of the

p. 530

Code of Civil Procedure, it is provided as follows:. “In either of the following cases the plaintiff is not entitled to a divorce,, although the adultery is established. First. Where the offense was committed by the procurement or with the connivance of the plaintiff.”

This branch of the case was exhaustively examined by the learned referee in a well-considered and elaborate opinion, reaching the conclusion that the plaintiff did not conspire with the corespondent, Owens, or any other person or persons, to cause or promote the adulterous intercourse complained of, and that the adultery was not committed by the procurement or with the connivance of the plaintiff.

It is insisted by the learned counsel for the defendant that the facts, as found by the referee, do not justify the conclusion reached by him. A careful analysis of the findings of fact by the referee fails to disclose anything in the employment of the co-respondent, Owens, by the plaintiff, or in plaintiff’s continuing to board him after he concluded his service. Nor can any legitimate inference, ad verse .to the plaintiff, be drawn from the sale and conveyance of his hotel property, or the storing of a portion of his furniture with his mother, Mrs. Bissell, where Owens was subsequently employed and boarded and lodged. The referee finds that up to the 18th of July, 1891, the defendant had not committed adultery with Owens, but that, on the 13th of July of that year, plaintiff was informed by Mrs. Bissell of her suspicions of improper intimacy between the defendant and Owens, and that defendant would dpsire to come to Bissell’s. the next Saturday, and if she came, and the plaintiff would follow her, he could verify the suspicions expressed by Mrs. Bissell. The report finds that the defendant did request, permission of the plaintiff to visit Bissell’s on the Saturday night referred to, and that such permission was granted, and the plaintiff then arranged with friends to assist him in watching the movements of the defendant, and thus detect her infidelity with Owens, if any occurred. It is to be observed that the evidence does not disclose, nor does the referee find, that the plaintiff took any affirmative' steps to bring about a meeting between the defendant and Owens'at the time -of the occurrence of the alleged adulterous intercourse. It is true that his suspicions had been aroused, and he sought to detect her infidelity, if it ex.isted, and took no steps to prevent the defendant carrying out her manifest purpose of meeting the man whom he suspected as being, and who proved to be her paramour. But he left her to her own volition. This, we think, he had a right to do. Any other rule would compel a husband to impose upon his wife undue restraint, and might often lead to the utterance of unfounded suspicions, well calculated to disturb the harmony of domestic relations. While the láw very justly condemns any act on the part of the husband by which he voluntarily leads his wife into temptation, or in any way connives at or procures her defilement, it does not prevent him from scrutinizing her conduct, or detecting her in her voluntary violation of the sanctity of the marriage relation.

p. 531

But it is insisted by the defendant that the learned referee erred, in allowing the plaintiff in this case to be sworn, and give evidence in his own behalf, under the objection that such evidence is inadmissible under § 831 of the Code. If this testimony had not been'voluntarily stricken out, on motion of the plaintiff, without objection, we think it would'have been error, for which this judgment should be reversed. But as all of the plaintiff’s direct examination was stricken out by the court, on motion of the plaintiff, without objection from the defendant, we think that the same is out of this case, and can therefore do the defendant no harm. The defendant, therefore, having made the plaintiff her own witness, and proved by him, with great particularity, all the facts relating to his conduct, and that of the defendant, claimed by the defendant to bear upon the charge of conspiracy and connivance of the plaintiff, she cannot object to the explanations to that evidence given by the plaintiff on a redirect examination of the plaintiff.

Mb'r do we think the referee erred in refusing to grant an ad- • journment, as asked for by the defendant, to procure the attendance of the witness Sibley. The granting of an adjornment while a trial is in progress is largely a matter of discretion, and nothing short of an abuse of that discretion would justify the court, on appeal, in reversing for such refusal.

We see no error committed by the referee in his findings of fact, conclusions of law, or rulings upon the trial, for which this judgment should be reversed.

Judgment affirmed, with costs.

All concur.