44 N.J. Eq. 438 | New York Court of Chancery | 1888
This is a suit by a wife against her husband for divorce, on the ground of adultery. The defendant has been twice mar
There is no direct proof of adultery. The evidence on which the complainant relies, consists entirely of proof of proximate acts, but there can be no doubt, that if the acts were committed by the defendant and his alleged paramour, which the evidence of a single witness imputes to them, there is sufficient evidence of adultery to justify a decree of divorce. The decisive question of the case is, should the evidence of this witness be accepted as true, in view of the fact that it is 'flatly contradicted by the defendant and his alleged paramour, and is uncertain in point of time and quite improbable in an important particular.
The defendant’s first wife is called Mary Smith in the bill, and has been referred to by that name in the evidence. The acts indicating adultery were committed, if they were committed at all, at the residence of Mary Smith’s mother. At the time it is alleged they were committed, Mrs. Smith’s family consisted of herself, her two daughters, Mary and Charlotte, her son Edward, and Charlotte Kamp. Charlotte Kamp is a niece of Mrs. Smith, and had lived in Mrs. Smith’s family, as a servant, for five years prior to May, 1887. She is the witness who testifies to the proximate acts. She swears that the defendant, at one time, was in the habit of coming to Mrs. Smith’s regularly twice a week, on Tuesday and Friday evenings; that he usually came about eight o’clock and remained until ten or half-past ten; she never saw him in the house, but she knew he was there, because almost every time he came, she saw him, from the basement window, ascend the steps to the front door. Mary always let him in. On the first floor above the basement of the house occupied by Mrs. Smith, there are three rooms and a hall. The front room, at the time these visits are said to have been made, was used ás a parlor; the next room had a bed in it, and was used
The wrongful act, on which the complainant’s right to a divorce rests, is charged in her bill to have been committed in April, May and June, 1886. Her bill was filed July 22d, 1886. In such cases, the party seeking a dissolution of the marriage tie is required to state his or her case with such fullness and particularity that the defendant may know just what the charge is that he or she is called on to answer. The time when, and the place where, and the person, if known, with whom the offence was committed, must be stated; but in laying the time, it will be sufficient if the month and year are given, without specifying the
The complainant’s witness, Charlotte Kamp, was examined on ■the 22d of March, 1888. The proofs show that she quit the service of Mrs. Smith, and left her house the last of May, 1887. On her direct examinination, she testified that the visits which the defendant made to Mary Smith, and which she described in her testimony, were made in the Spring of 1886. On her cross-examination she changed her testimony on this point, and fixed the date of these visits as the Spring of 1887, a year after the time when the adultery charged in the bill is alleged to have been committed. The following are some of the questions put to her on this subject, and the answers she made:
“ Q. You left Mrs. Smith’s in May last, am I right?
“A. Yes.
“ Q- Now, then, what I want to know is, whether you saw Mr. Seheffling there, at Mrs. Smith’s, twice a week, on Tuesdays and Fridays, the same Spring that you left ?
“A. Yes.
“ Q- It was the same Spring that you left ?
“A. Yes.
“ Q. And not the year before that ?
“A. No.
“ Q■ So that it is about a year since you saw Mr. Seheffling there?
“A. Yes.
■“ Q. And not two years ago ?
“A. No.”
She afterwards, on her re-direct examination, changed her tes
But can anything which this witness says, respecting the defendant’s visits to Mary Smith, be accepted as true ? Her testimony on this point is not only unsupported and uncorroborated, but flatly contradicted. All the other persons who were members of Mrs. Smith’s family, during the year 1886, swear that they never saw the defendant in Mrs. Smith’s house during that year, nor heard of his being there. The defendant and Mary Smith both positively deny that any sexual intercourse has ever taken place between them since they were divorced, and also that the defendant was ever in Mrs. Smith’s house during the year 1886. Their evidence, although not entitled to the weight which would be given to the evidence of a fair and disinterested witness, is nevertheless competent and entitled to Consideration. In a case of doubt, it is sufficient to defeat a complainant’s claim to a divorce. Mayer v. Mayer, 6 C. E. Gr. 246. The evidence given by the defendant himself in this case impressed me as being fair, frank and truthful. But it should be said in addition, that the story of Charlotte Kamp is highly improbable. According to her evidence, each time the defendant and- Mary Smith had adulterous intercourse, they left the bed, on which they laid down when their intercourse took place, in such condition as to
The complainant’s bill must be dismissed.