141 N.Y.S. 723 | N.Y. App. Div. | 1913
Upon the appeal from the judgment which found the plaintiff guilty of adultery (See 155 App. Div. 898), we were of the opinion that the evidence, although circumstantial and not absolutely conclusive, was sufficient to support the verdict. The evidence against the plaintiff showed that while living apart from her husband she had formed the acquaintance of the corespondent, a resident of a distant city, who, whenever he was in the city of New York, called upon her with considerable frequency. This was not denied, but the plaintiff did vigorously deny the fact of adultery and in this was supported by the corespondent, who, however, was not present at the trial, and by her daughter, who had resided with her at the times at which the adultery was alleged to have been committed. The admitted fact of plaintiff’s intimacy with the corespondent, while it did not serve to prove the fact of adultery, did lend color to the inference sought to be drawn from the testimony of the principal witnesses against her who were a former servant and the janitress of an apartment house and her daughter. The plaintiff now says that, although she was informed before the trial of the nature of the charge against her and of the dates upon which it. was alleged that she had been guilty, yet she was surprised at the nature of the evidence adduced to sustain the charge, and that there is evidence now available, but not available to her at the trial, which, if she be allowed to offer it, will counterbalance the unfavorable inferences against her based upon the evidence to which we have referred. While plaintiff does not perhaps fully bring herself within the strict rules commonly applied to-applications like the present, we are of opinion, considering the nature of the action and the peculiar circumstances of the case, that justice will be best served by granting the motion and ordering a new trial of the issue as to plaintiff’s adultery. The order is, therefore, reversed and anew trial granted, without costs. Ingraham, P. J., McLaughlin, Laughlinand Clarke, JJ., concurred. Order reversed and motion granted, without costs.
