235 A.D. 25 | N.Y. App. Div. | 1932
This action was brought by the plaintiff husband against the defendant, his wife, for an absolute divorce because of misconduct and adultery committed by defendant with one Clarence E. Clanny. The answer of the defendant denied the allegations of the complaint that she was guilty of adultery with Clanny on September 28, 1930, at 10 Columbia avenue, Palisade Park, in the State of New Jersey. Upon the pleadings the following issue was framed: “ Did the defendant commit adultery with one, Clare Clanny, at Palisade Park, New Jersey, on the 28th day of September, 1930? ” The said issue was tried at Trial Term before a justice of the Supreme Court and a jury. The jury answered the framed question in the negative, and judgment was thereafter rendered dismissing the complaint upon the merits, with costs to the defendant. From said judgment the plaintiff appeals upon two grounds: First, that the verdict of the jury was contrary to the evidence; and, second, that the case was submitted to the jury on an erroneous theory. We are of the opinion that the verdict rendered by the jury, answering the framed question in the negative, was so clearly against the weight of the evidence as to require a reversal of the judgment dismissing the complaint, and that, upon the evidence, plaintiff was clearly entitled to a verdict and is now entitled to a decree dissolving the marriage between the plaintiff and the defendant because of the defendant’s proven misconduct. We are also of the opinion that the court erred in refusing to receive evidence offered by plaintiff at the trial, and in submitting the issues to the jury on an erroneous theory.
Hulon L. Ballew testified as a witness in behalf of plaintiff, He was a poster printer and had only met plaintiff on the night of September twenty-seventh, but had known plaintiff’s fellow-employee, Norvill, for several years," that he met plaintiff and Norvill on the evening of September twenty-seventh, and, when informed that they were about to investigate the conduct of the defendant, asked permission to accompany them. Ballew testified that when they received the signal from Norvill, plaintiff broke in the door and ascended to the defendant’s apartment, he, Ballew, remaining somewhat behind, but finally went up and entered the apartment and then went to the bathroom door and pushed it open and there found the defendant attempting to adjust a robe over her shoulders; that, with the exception of the robe over her shoulders, she was unclothed.
The defendant was sworn as a witness in her own behalf, and testified that on September 27,1930, she was employed as a waitress and cashier at a tea room on Engle street in Englewood, N, J. Defendant testified that on the night in question, between half-past eight and nine o’clock, she left her work and went to her apartment accompanied by the corespondent, Clanny. She testified that the apartment and their clothing were overrun by cockroaches
Clanny, sworn as a witness for defendant, testified that for about a year prior to the trial he had been accustomed to take the defendant home nights in his car, a distance of three or four miles from where she was employed, and that he generally called for her on her late night; that she worked to twelve o’clock every other night, and that he generally called for the defendant then because she had to change cars at a junction, and that he had called for her every other night for about a year.. Clanny also admitted that when he was accustomed to go into the apartment with the defendant Mrs. Diss “ got out pretty pronto ” and within two or three minutes after they had arrived at the apartment. The defendant also, on her cross-examination, admitted that when her husband and Ballew entered the apartment, she had nothing on but her kimono which she had around her. On cross-examination the defendant testified that after Clanny had gone into her bedroom and had thrown himself across the bed with his feet on the floor, she came in and asked him how he felt, and that she leaned over on her elbow, resting her elbow on the bed and lying sidewise. Defendant testified: “ I put my hand on his forehead to see if he was running a temperature. It is very usual for him to run a heavy temperature, and I got up then and undressed; took off my dress, put my robe around my shoulders and took off the rest of my clothes. Q. And Mr. Clanny was lying on the bed while you undressed? A. Yes. Q. And what was he doing while you were undressing? A. Just lying there.”
It appeared at the trial that the defendant had given testimony on a habeas corpus proceeding hearing which had taken place some time before and had testified at such hearing concerning the same transaction. On cross-examination at this trial, she was asked: “ Q. Now, on this habeas corpus hearing, Mrs. Kay, do you remember being asked this question and making this answer on examination by your own attorney: ‘ Q. Did you embrace Mr. Clanny
We think the testimony of the witness Norvill was corroborated by the admissions of defendant as to her former testimony in the habeas corpus proceedings, that she had, in fact, kissed and embraced the corespondent as they were lying upon the bed. We have no hesitation in believing that the. testimony of the defendant and her paramour, Clanny, as to what occurred was untruthful. There was proven a lascivious inclination on the part of the defendant and Clanny, and opportunity to gratify such inclination, and it may well be inferred that the actual act of sexual intercourse occurred. The verdict of the jury was clearly against the weight of the evidence. We are also of the opinion that the justice presiding at the trial erred in refusing to permit plaintiff to ask the defendant whether she loved plaintiff; whether she ever loved him; as to whether her husband had requested her to come back and live with him around Christmas, 1929, and as to whether the defendant thought the corespondent, Clanny, was a married man. Defendant’s trial counsel,.when these questions were asked of defendant, interposed objections thereto, which were sustained by the justice presiding at the trial, and to which rulings plaintiff duly excepted. We think these inquiries were entirely pertinent, and that the plaintiff should have been permitted to ask the questions. In Black v. Black (30 N. J. Eq. 288; quoted in Graham v. Graham, 50 id. 701) the court stated: “ In cases of this class, where infidelity is charged against the wife, it is always important to inquire whether the evidence shows she has so far suffered herself to be alienated from her husband as to allow a criminal love or desire for another
Had plaintiff been permitted to ask the questions and the defendant compelled to answer them, the answers may well have disclosed a lascivious desire on the part of defendant. It has been held that an act of adultery disassociated with that embraced in the pleadings in an action may be proven for the same purpose. (Roth v. Roth, 90 App. Div. 87). In Roth v. Roth (supra) the court charged the jury as follows: “ The burden is upon the plaintiff from first to last in the case. He must satisfy you by a fair preponderance of credible evidence of the two propositions which I have heretofore indicated to you; first, that these parties had the lascivious desire; and, second, that they had the opportunity to gratify it; and third, that they did gratify it. That, however, you may find as an inference.”
In Davidson v. Davidson (134 App. Div. 958) it was held that where evidence indicated the guilt of the defendant, even though the intimacy stopped short of actual guilt, the mere fact that no one saw the act was not important, and the judgment for defendant was reversed. This court, under circumstances much weaker than those presented in the case at bar, very recently reversed an order and judgment granted at Special Term and reversed the findings of a jury on framed issues upon which they were based as against the weight of the evidence. (Rathje v. Rathje, 232 App. Div. 664.) An examination of the record on appeal in Rathje v. Rathje discloses that but a single act of adultery was embraced in the framed issue in that case. The defendant wife in that case and the corespondent were found together in a bedroom in the corespondent’s apartment. There was no evidence of any actual adulterous act between them. The proofs in that case were much less incriminating than those in the case at bar. The jury found for the defendant, but, upon appeal, this court set aside the verdict and reversed the judgment in defendant’s favor as against the weight of the evidence. The jury in the case at bar, upon the evidence submitted to it, should have answered the framed question in the affirmative.
We are also of the opinion that the trial court erred in denying the request of plaintiff’s trial counsel to charge the jury that if the jury found that the parties charged with wrongdoing had the lascivious desire and that they had the opportunity to gratify it, whether or not they did gratify it may be found as an inference. This request the court declined to charge, and in so doing, in our
Upon the evidence plaintiff was clearly entitled to a decree of divorce. The judgment appealed from should be reversed and a new trial ordered.
Finch, P. J., McAvoy and Sheehan, JJ., concur; Maetin, J., dissents.
Judgment reversed and a new trial ordered.