30 N.Y.S. 200 | The Superior Court of the City of New York and Buffalo | 1894
On December 28, 1892, Helen Stowell filed a bill1 in this court against John M. Stowell for absolute divorce, on the ground of adultery committed by the defendant with a woman named Ida Levy, at 106 Eighth avenue, in the city of Hew York,— a house in which the said Helen and John M. Stowell resided at the time. It appears by the complaint that the Stowells were married May 28, 1874, at St. Joseph, Mich.; that for more than five-years prior to the filing of the bill they were residents of the state of Hew York; that the issue of the marriage was one daughter, Ada J. Stowell, then aged 17 years. The complaint charges that the adulteries were committed between April and September, 1892;. that they were committed without the consent, connivance, privity, or procurement of plaintiff; and that she had not cohabited with, the defendant since she discovered them. Ho answer was interposed, and on March 10, 1893, a decree was made in favor of Helen Stowell, against her husband, dissolving the marriage. Upon the trial of that case, Ada J. Stowell, the daughter, was the principal witness. She testified that on September 30, 1892, she went upstairs from the kitchen, and saw her father and Ida Levy on the bed together; that her father had his clothing off, and that Mrs. Levy had her clothes loosened; that this occurred at about a quarter to-9, or 9, o’clock in the evening; and that she informed her mother-of it subsequently.
About 10 days after the entry of this decree the said Helen Stow-ell married James McIntyre, the plaintiff in the action first above entitled. McIntyre filed his bill for divorce May 7, 1894; alleging that since March, 1894, Helen McIntyre (formerly Stowell) was living in open adultery with John M. Stowell, her former husband, at Ho. 1038 Park avenue, in the city of Hoboken, H. J. Ho defense was interposed, and the action came on for trial June 13, 1894. It was proved on the trial of that action that Mrs. McIntyre was residing with her daughter at Ho. 1038 Park avenue, Hoboken, H. J.;. that the fqrmer husband frequently visited the house, having a night key thereto, and that on one or more occasions he remained in the house all night; that Mrs. McIntyre and Stowell were arrested at Hoboken under a warrant issued by George F. Seymour, a justice of that city, charging them with living in open adultery, in violation of the laws of Hew Jersey. Ho examination has yet been held in that criminal proceeding, which is still pending. Immediately after the testimony was taken in McIntyre v. McIntyre,. Mr. Stowell, the corespondent, applied to the court for leave to-intervene, upon the ground that he was innocent of the charges-
Another strong feature in the case is that up to, and for two days after, the time when the papers were served in the suit of Mrs. Stowell against her husband, she was living with him. This circumstance, with the others before mentioned, and the significant fact of the marriage to McIntyre almost immediately after the divorce was procured, show that it was part of a conspiracy, in which all the parties united, that Mrs. Stowell should obtain a divorce for the sole purpose of marrying McIntyre, who had visited the house of Mr. and Mrs. Stowell for some time prior to the bringing of that suit. A clearer case of fraud and collusion could hardly be presented.
For these reasons, it becomes the duty of the court, representing the state, to set aside the decree obtained by Mrs. Stowell, together with all other proceedings had in the action, and an order to that effect will be entered.
As to the McIntyre Case, the proofs clearly show that, under the guise of paying alimony to the wife, McIntyre gave her $1,000, and that this payment resulted in an agreement on the part of the wife that she would not defend the suit, and the proposed defense thereof was abandoned. Without giving in detail the particulars of this collusion, it is sufficient to say that McIntyre’s application for divorce must be denied upon the ground of collusion,—a course which makes it unnecessary to consider the other proofs in the case. Whether these people should be proceeded against criminally is a question for subsequent consideration. It is sufficient for present purposes to say that such practices cannot be tolerated, but must receive the most severe condemnation. The position this decision may leave the parties in is a question with which the court has nothing whatever to do. It must pronounce against fraud, collusion, and imposition at all times and under all circumstances, leaving the guilty parties to take whatever consequences flow from their wrong. The examination of the different witnesses must remain on file, and the orders directed to be entered are founded upon such testimony, and upon the judgment roll in the case of Stowell v. Stowell, which will be found in volume 114 of the Divorce Records of the court. Ordered accordingly.