78 A.D. 127 | N.Y. App. Div. | 1903
Action for an absolute divorce. The plaintiff had a judgment from which the defendant and the co-respondent have appealed. The complaint charged that the defendant committed adultery with the co-respondent at various times and places set out in the complaint. The trial court found that all of these allegations were true. It also found, specifically, that this defendant committed adultery with the co-respondent on the 10th of September, 1898. •
After a careful consideration of all the evidence set out in the record I am of the opinion that the same was insufficient to justify the court in rendering the judgment which it did. There is absolutely no evidence sustaining the finding that the defendant committed adultery with the co-respondent except on one occasion, September 10, 1898, and, as to that, the finding is sustained only by
As I understand the law, where the evidence is capable of an interpretation which makes it equally consistent with the absence as with tfie presence of a wrongful act, then the court must adopt the former in preference to the latter. This rale was succinctly stated by Judge Martin in Lopez v. Campbell (163 N. Y. 348), where he said the existence of an act “ can only be established by proof of such circumstances as are irreconcilable with any other theory than that the act was done.” Applying this rule to the evidence in this case, it at once, as it seems to me, becomes apparent that it is wholly insufficient to sustain the findings upon which the judgment is based. It will not do to dissolve a marriage contract, or to injure the reputation of others not parties to it, upon the uncorroborated testimony of one witness, when such witness is contradicted by the defendant, the co-respondent, her husband and several other witnesses. There is more stability to such contracts than this, and a previously good character cannot be destroyed in this way by judicial decree.
There is, as already said, no evidence to sustain any of the findings, except the one relating to the tenth of September, and as to this it is so manifestly against the weight of evidence that it must, for this reason, be set aside. Mere suspicion that one is guilty of wrongdoing does not make it so, any more than suspicion constitutes evidence.
The conclusion thus reached renders it unnecessary to consider the other questions raised, and especially as to the errors alleged to have been committed in the exclusion of evidence, as the same questions may not be presented on another trial.
Judgment reversed; new trial ordered.
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Judgment reversed and new trial ordered.