Shaw v. Shaw, 141 N.Y.S. 425

Shaw v. Shaw

141 N.Y.S. 425 | N.Y. App. Div. | 1913

Thomas, J.:

The plaintiff had an interlocutory judgment for divorce, entered May 28, 1912, which was affirmed by this court in February, 1913. (155 App. Div. 252.) On July 12, 1912, the only corespondent appeared, demanded a copy of the complaint, which was served; the corespondent answered, and.moved to set aside the interlocutory judgment and to settle issues, and from the granting order this appeal is taken.

The motion papers showed that examinations by physicians reveal physical conditions in the corespondent indicative of virginity. Plaintiff offered the testimony of several physicians that the. described state does not prove that fact, but none states plainly that it is not evidence of it. Proof is the. sum of evidence that establishes the fact to be ascertained. A fact itself may be so evidential as to prove an issue, or it may only *380tend, to prove it. Does the .corespondent’s condition tend to prove, although it does not establish, that is, prove, her innocence? The examining’ physician, appointed by the court, found intact the virginal membrane, but would not affirm or deny virginity. Another examining physician confirmed the general appearance of virginity, another predicated upon it his judgment that “it would be absolutely impossible for an intercourse to have taken place, ” while another examiner declared that “ This girl has never been, interfered with by a man.” Against-such testimony that of several physicians is arrayed. Their opinion is that, from the conditions discovered by the examining physicians, “ it is impossible to state whether she ever has had sexual intercourse; ” that the presence óf the intact hymen “ is not proof that a woman is a virgin.” These experts do not state that such perfect condition is not valuable evidence of virginity, but that the “mere presence” does not establish it. The mere conditions may not assure an irrefragible conclusion, for there may be exceptions. As one of defendant’s experts states, “It is possible in certain cases for intercourse to have occurred without any apparent disturbance of the hymen.” But the determination of an issue of fact depends upon probabilities, and if the testimony of the examining physicians aids the probability of the corespondent’s chastity, it should be heard, although there is a possibility that the physical phenomena do not imperatively demand her vindication. It may be again urged that the corespondent cannot be permitted to intervene after the entry of the interlocutory judgment; but the statute makes the judgment the limit of her opportunity, and the court should abide by it.. The motion, of the corespondent was to set aside the interlocutory judgment, but the denial does not affect the motion by her guardian ad litem.

The order should be affirmed, with ten dollars costs and disbursements.

Jekks, P. J., Burr, Carr and Rich, JJ., concurred:

Order affirmed, with ten. dollars costs and disbursements.