94 N.J. Eq. 480 | N.J. | 1923
The opinion of the court was delivered by
This is an appeal from a decree of the court of chancery dismissing a petition for divorce a vincula filed by the wife against her husband charging him with living in adultery with his housekeeper at his residence in the city of Bloomfield.
There is no direct evidence in the case of the commission of the act of adultery, and the charge is sought to be established circumstantially, which, under the well-recognized rule, can only be done where two facts are established,—a criminal disposition or desire in the mind of both the defendant and his particeps criminis, and an opportunity to commit the crime. Berckmans v. Berckmans, 16 N. J. Eq. 143, and Black v. Black, 30 N. J. Eq. 223.
The petitioner and defendant were married in 1906 and lived together until July, 1911, when they separated by mutual consent, the husband eventually, in 1916, going back to live at the home of his father, who, with defendant’s aunt, were living in a flat on Dodd street, in Bloomfield. The father and aunt being well advanced in years, defendant’s niece, with their consent, in September, 1917, procured the co-respondent, a married woman who was not living with her husband, and who was a friend of the family, to go to the flat and keep house for them, and a little while later the co-respondent’s mother, a woman about eighty years of age and in feeble health, was brought from an almshouse by the defendant to live in the flat so that she might be near her daughter. In 1917, defendant’s father died in the flat, and
Aside from the fact that the defendant and co-respondent have lived together by themselves in this flat for approximately two years under the circumstances just related, there is very little evidence which sheds any light upon the relations existing between them. None of the witnesses testified to having seen any manifestations of affection between them nor any improper conduct on the part of either. It does appear from the evidence that defendant wrote a letter to his wife on June 13tli, 1919, from which the following extract is taken, viz.: “It has seemed to me daily that I ought not to be living with another man’s wife, on the other hand I am going to have a home and not board. If the thought has occurred to you that you ought not to allow it, or that I ought to take you out of Bamberger’s store, then you must think of my income as $20 per week. Can it be done with happiness, etc.,” but when this excerpt is read in conjunction with the context of| the letter, it will at once appear that he had therein informed his wife that his housekeeper’s mother was then living with them in the flat; that she was eighty years old, and in rapidly, failing health, and could not live long, and keeping in 'mind that he was waiting to his wife who would be the last person to whom he would make any admission of improper conduct, it seems to us that the most unfavorable interpretation that could be put upon the above quoted language is that the defendant realized that maintaining a home for himself in this flat with a housekeeper who was separated from her husband, might be considered unconventional, but the language was clearly not
A careful reading of all the testimony, leads inevitably to the conclusion that the only apparent ground for the charge of adultery against the defendant, is the fact that he and the housekeeper have been living together by themselves in the same apartment, but considering the circumstances under which it came about, we cannot say that they were such as to lead the guarded discretion of a reasonable and just man to the conclusion of guilt, which was the standard laid down in the ease of Hurtzig v. Hurtzig, 44 N. J. Eq. 329; affirmed, 45 N. J. Eq. 869, where the court also held that “the judgment must not be rash and intemperate, moving upon appearances that are equally capable of two interpretations. If the circumstances, taken both singly and together, reasonably admit of two interpretations, that interpretation which favors
Wé agree with the vice-chancellor who heard the case in the court below, that there is an abundance of proof of opportunity to commit adultery, but that the case is absolutely barren of proof of any desire or inclination to commit the offence, and the excess of proof of the one element cannot supply the deficiency in the other. They were perhaps defying convention and inviting scandal, but we cannot, from the mere fact of their living alone together in the same apartment, without any proof of illicit desire on the part of either, infer that their relations were criminal, and there is nothing in the proofs that leads us to believe that their relations were meretricious, and we therefore conclude that the decree of the court of chancery must be affirmed.
For affirmance—The Chtee-Justice, Swayze, Teen-chard, Parker, Bergen, Black, Kalisch, Gardner, Ackerson, "Van Buskirk—10.
For reversal—Kalisch, White—2.