34 N.Y.S. 720 | N.Y. Sup. Ct. | 1895
Allen v. Allen, 18 N. Y. Wkly. Dig. 184, affirmed 101 N. Y. 658, 5 N. E. 341, is an authority holding that “the rule of
“Besides this, we think Green should have been called to corroborate him [Campbell] if not to the fact of adultery, to such surrounding circumstances as he would have been obliged to testify to. * * * In this case Green has not been called by either side. It was not the duty of the defendant to show that she was not guilty of adultery; it was the duty of the plaintiff to establish the fact affirmatively, and to prove such circumstances that the defendant would be compelled to establish her innocence by all the evidence that she could procure for that purpose. Green lives in the neighborhood of both parties to this action, and could readily have been put on the witness stand, but, without excuse or explanation, he has not been sworn. The fact that he was not called by the plaintiff surrounds his case with suspicion, and leaves doubts and uncertainties in existence which might possibly have been removed by his evidence. It is known to the referee that Green and the plaintiff have been intimate associates and friends, and we think he should be called as a witness, for if he declined to admit or deny the alleged adultery, as he probably would have a right to in court, he could have testified whether he was in company with the defendant any time that evening, - and probably other circumstances of importance in the case.”
We are inclined to think the referee laid an erroneous rule upon the plaintiff in respect to the absence of Green as a witness. In Rider v. Miller, 86 N. Y. 507, the defendant was charged with having committed a fraud in obtaining a deed through the instrumentality of one Schooley, who was present and took part in the negotiations and transactions with the grantor. The defendant did not call Schooley as a witness, and in the course of the opinion delivered in that case it was said that the omission bore very much against the defendant, “and tended to strengthen the plaintiff’s case.” In Gordon v. People, 33 N. Y. 501, it was said that an omission to produce evidence which will exculpate is not conclusive of the fact in dispute, but that the absence creates a strong presumptive evidence against the party who might thus have called to his aid the testimony omitted; and that the force of such circumstance should be left as a question for a jury or trial court to consider. In the course
Considerable evidence was given relating to another occasion when the defendant is alleged to have committed adultery, but we forbear to comment upon that, inasmuch as a new trial may develop a new state of facts and further evidence than now appears before us.
Judgment reversed on the law and facts, and a new trial ordered, with costs to abide the event. All concur.