117 N.Y.S. 396 | N.Y. App. Div. | 1909
Plaintiff brings this action for an absolute divorce. The jury said by their verdict that on the 26th day of December, 1907, the defendant committed adultery with Hanford S. Moore. While the evidence to sustain this finding is not entirely satisfactory, we are not disposed to reverse the judgment upon the ground that the verdict is against the weight. of the evidence. That, the evidence established' an'opportunity for. carnal intercourse on that occasion is true. This alone would be of little probative force unless there was also evidence of such relation between the parties and such conduct on their part a@ would tend to establish that the desire and willingness existed to engáge in such an act when the opportunity came. We do not propose to review all of the testimony offered to establish this.' ;Certain of the testimony was received over the objection and. exception of. the defendant, .and these exceptions, in view of the importance of .the case, the result to the defendant, and tire closeness of the question of fact, require careful scrutiny.
Carrie L. Moore, the wife of the corespondent, was called as a witness for the plaintiff. She testified that in October, 1906, more than two months prior to the date upon which the" jury found the adultery was committed, she called upon the defendant and said to her: “ I have been to see Mr. Lunham and Mr. Moore admitted
Hanford'S. Moore, the corespondent, "was called as a witness for the defendant. He denied ever having had sexual intercourse with her. He was then asked what he had said to his wife in regard to the condition of his underclothes, whether he had told his wife that he had intercourse or had committed adultery with Mrs. Lunham, what he said when his wife charged him with intimacy with her, whether he told his wife that' at that time both he and Mrs. Lunham had been drinking, what his wife told him that she said to Mr. Lunham, and whether she told him that she had said anything to Mr. Lun
The judgments and order appealed from should be affirmed, without costs.
Woodward, Jerks, Gayror and Miller, JJ., concurred.
Interlocutory and final judgments and order affirmed, without costs.