Bell v. Clarke
45 Misc. 272
N.Y. Sup. Ct.
1904
Check Treatment
Clarke, J.

Motion to vacate an order for the examination of a witness before trial granted under the provisions *273of section 871 et seq. of the Code. The motion is upon the ground that the moving papers show that the matters as to which the proposed witness is to be interrogated are irrelevant and immaterial to the issues in the action. The action is in equity. The prayer is for an injunction forbidding the defendant from holding herself out as the wife of the plaintiff, etc. The main issue is marriage or no marriage. The defendant asserts it, the plaintiff denies it. No ceremonial marriage is claimed. Defendant asserts a so-called common-law marriage. That is, she attempts to establish a precedent marriage by proof of subsequent consorting, holding out, repute, etc. Plaintiff alleges that the relation between the parties was meretricious in its origin, which was during the lifetime of his lawful wife, and so continued to the end. Plaintiff alleges that during the time that he was so consorting with defendant, “ she renewed and continued her former loose mode of life and constantly had and maintained promiscuous intercourse and relations with a great number of men in plaintiffs house, in hotels, in houses of assignation and prostitution and elsewhere, becoming to all intents and purposes a professional prostitute.” He asks that the proposed witness be examined on the eve of her departure to Europe and asserts that “ said witness has knowledge of and will testify to the loose and improper relations of a promiscuous character maintained by the defendant during the period of said relation with plaintiff” Defendant asserts that as this is not an action for divorce, such conduct, if it existed, being subsequent to the marriage, is not material here. That married women have been known to commit improprieties and that it is no evidence whatever tending to disprove the marriage. But, the relation having commenced as meretricious, is presumed to continue such. The defendant not claiming a ceremonial marriage, independent of her own direct evidence, which will be contradicted by plaintiff, must establish her contention by circumstantial evidence of conduct, holding out, etc., from which the inference to be drawn will be an actual precedent marriage. The plaintiff, it is conceded, may offer the same kind of evidence tending to *274show their mutual relations to establish the contrary. Can he go further and show her relations with other men as evidence tending to establish the nature of her relations with him ? I think he can. I think when the fact of marriage is attempted to be established in this indirect way the whole conduct, life and character of the parties during the period in question is open to inquiry. Because the inferences to be drawn must be affected to a great degree by such considerations. Not that marriage with one’s mistress is impossible, but that a great deal more evidence and of a great deal stronger nature will be required in the case of a loose and licentious woman than in the case of a chaste, delicate and refined woman. This view is supported by the following cases: Chamberlain v. Chamberlain, 71 N. Y. 423; Arnold v. Chesebrough, 58 Fed. Repr. 833; Matter of Brush, 25 App. Div. 610; Bates v. Bates, 7 Misc. Rep. 547; Jackson v. Jackson, 80 Md. 176; Haley v. Goodheart, 58 N. J. Eq. 368. I have come to the conclusion that the evidence tendered would be admissible as relevant to the issue. If there was doubt' about it I think it would be my duty to deny this motion, so that the evidence might be perpetuated, leaving the question of its admissibility to the trial court when offered, where it properly belongs. If, however, defendant desires to try out this question now by an appeal from the order, a clause may be inserted therein to the effect that the evidence is not to be filed for thirty days, giving an opportunity to go the Appellate Division. Motion denied, with ten dollars costs.

Motion denied, with ten dollars costs.