58 N.Y.S. 503 | N.Y. App. Div. | 1899
This is an action brought by the wife to obtain a divorce a vinculo, on the ground of adultery. The proof on the part of the plaintiff tended to establish, and the court found, the commission of adultery by the defendant; but the court also found that such ■offense was condoned, and upon such ground directed a judgment in favor of the defendant dismissing the complaint. This is the only ■question requiring consideration in the case.
The evidence upon which the court based its finding of condonation was undisputed. It appeared that the defendant had committed adultery with the wife of one Johnson, and the latter, having his suspicions aroused that his wife had committed adultery with the defendant, visited the defendant’s house, and in the presence of the plaintiff charged him with such offense. This charge the defendant strenuously denied, but admitted that he had seen Johnson’s wife, and identified her photograph; also his business card, which Johnson had produced. He further stated that some other man was personating him. He then offered to do all that he could do to assist Johnson in discovering who such person was. It is quite ■evident from the testimony that the defendant’s denials of improper intercourse with Johnson’s wife had a reassuring effect upon Johnson ; for, as Johnson states, he shook hands with the defendant when leaving the house, while the testimony of the plaintiff is in terms that she then believed her husband had not been guilty of marital infidelity, and was satisfied with his denial as made to Johnson at that time. This interview occurred about June, 1895, and thereafter the plaintiff continued to reside and cohabit with the defendant as his wife until September, 1898. During this period of time she testified that her husband assured her he was not guilty of any offense with the wdfe of Johnson, and upon one occasion informed her that he had met Johnson upon the street; that the latter shook him by the hand, and apologized for the mistake which he
The court based its finding of condonation by the wife of the husband’s offense upon the information which the plaintiff received from Johnson at the time of his visit to the house in June, 1895. We are of opinion that this evidence is insufficient to sustain such finding. It may be observed that the plaintiff is bound to negative the fact of the forgiveness of the offense on account of which she seeks relief, and is undoubtedly required to make proof of such matter where there is a default in appearance on the part of the defendant. (McCarthy v. McCarthy, 143 N. Y. 235.) But, where an appearance and answer are interposed, and condonation is.relied upon, good pleading requires that it should be averred by way of defense. (Smith v. Smith, 4 Paige, 432.) The public interest in matrimonial actions, however, requires the court to take note of the condonation of the offense if it appears in the proof and refuse the relief in a proper case. But, where it is relied upon as a defense, as it appears to have been in this case, although the answer did not. set it up as matter of defense, the burden was upon the defendant of sustaining such issue. (Todd v. Todd, 37 Atl. Rep. 766.) It is well settled by authority that there can be no condonation or forgiveness of the commission of adultery unless the party condoning has knowledge of the offense or of such facts as fairly import that she should have known. The provisions of section 1758 of the Oode of Civil Procedure in terms provide : “ The forgiveness may be proved, either affirmatively or by the voluntary cohabitation of the parties, with the knowledge of the fact.” When, therefore, cohabitation is relied upon to establish the condonation, the knowledge of the person that the offense has been committed must be established; and, where the husband claims the benefit of such act as establishing forgiveness of his offense, the court should be quite careful not to give him the benefit of such act unless it appear with
Applying these rules to the present case, it is quite clear that the burden of proof to establish the condonation rested upon the defendant; and it is equally clear that the evidence was insufficient for such purpose. The affection on the part of the wife which had induced her to enter into the marital relation, and the mutual confidence which such relation implies, makes us quite ready to believe — indeed, require it — that the wife, instead of being suspicious of the husband when the charge of infidelity was made against'him by Johnson, was justified in relying upon the denial of her husband; and in the interest of domestic harmony, and the proper confidence which ought to exist between husband and wife, it will be assumed that she accepted such denial in good faith, implicitly relied thereon, and dismissed the subject from her mind as unworthy of finding
It follows from these views that the judgment of the court, finding a condonation of the offense, may not be supported.
The judgment should be reversed and a new trial granted.
All concurred, except Goodrich, P. J., absent.
Judgment reversed and new trial granted, costs to abide the event.