28 N.Y.S. 214 | N.Y. Sup. Ct. | 1894
The parties were intermarried in January, 1878. This action was commenced in February, 1889; and the plaintiff, by his complaint, alleges various acts of adultery of the defendant with one Ira H. Myers, extending from in the year 1880 into the year 1888. The trial furnished a considerable bulk of testimony. There was no direct evidence of the defendant’s infidelity. The evidence which tended to support that imputation was made up of circumstances related by the witnesses on the part of the plaintiff, and, taken as true, was sufficient to warrant the inference and lead to the conclusion that the charge made against her was true, but not conclusive, in that respect. The evidence tending in that direction was contradicted by that of Myers and the defendant, and, so far as the facts of that character related by the plaintiff’s witnesses could come within the knowledge of those called on the part of the defendant, they were also contradicted or modified by the latter’s witnesses. Thus was presented a conflict in the evidence as to the facts material to the main question; and while, as represented by the record, there was an opportunity for the jury, upon the whole evidence, to have found that the charge against the defendant of marital unfaithfulness was not sustained, the question in that respect was one of fact for the jury, and the evidence sufficient to' support the verdict against her (Ferguson v.
It is urged by the defendant’s counsel that the issues for the trial were not properly settled, and for that reason the court erred in permitting the trial to proceed. The statute provides for the application to the court for the purpose, and that, when made, the court must cause the issues or questions to be distinctly and plainly stated for trial. Code Civ. Proc. § 970. When the trial was moved on the part of the plaintiff, the defendant’s counsel objected to proceeding to the trial for the reason that the issues to be tried by the jury were not properly settled. The objection was overruled, and exception taken. The ruling of the court had in its support the fact that the attorneys for the parties had some time before made in writing a stipulation that “the issues to be tried by a jury in the above-entitled action be stated as follows: Whether said defendant is guilty of the adultery charged in the complaint in this action to have been committed with the co-respondent, Ira H. Myers, as therein alleged; and that either party hereto may apply to the court, upon this stipulation, and without notice, for an order stating and settling the said issues accordingly.” And afterwards, upon the motion on the part of the defendant, an order was made by the court stating and settling the issues to be tried, in accordance with such stipulation. This was the situation when the plaintiff’s counsel moved the action for trial at the circuit, and it was by reason of such stipulation and order that the court permitted the trial to proceed. In this there was no error. It was essential to the trial to have the questions to be tried by the jury stated (Code Civ. Proc. § 823), and it was the right of the parties to have them settled for that purpose (Conderman v. Conderman, 44 Hun, 181). This the parties, by their attorneys, did by their stipulation, pursuant to which the order was made to that effect. They thereby waived the right to have, preliminarily to the trial, any questions more specifically stated and settled. The trial, therefore, was properly permitted to proceed, subject to the power of the court to state and submit to the jury any further questions of fact which properly or necessarily were for them to determine; and this was done, after the close of the evidence, by submitting to them the question whether five years had elapsed since the discovery of the adultery, whether it was committed without the plaintiff’s consent, and whether he had voluntarily cohabited with the defendant since its discovery by him. This was, upon the evidence, merely a formal proposition, to be disposed of by the verdict in the event the jury found that the main charge was sustained. While the defendant was not, as matter of course, entitled to a bill of particulars, she in the outset had the right to have the issues express the charges of misconduct on her part with a fair degree of particularity, that she might be apprised of those she was required to meet. Wood v. Wood, 2 Paige, 108; Carrillo v. Carrillo, 53 Hun, 359, 6 N. Y. Supp. 305; Strong v. Strong, 1 Abb. Pr. (N. S.) 233. But since the parties, by stipulation, and the order thereupon entered, as before mentioned, disposed of this matter, no question arises on
There was in the present case no motion made for a new trial before the justice there presiding, or at the term where the motion for final judgment was made, nor were exceptions directed by such justice to be heard at general term. For that reason the question arises whether the exceptions taken on the trial are here for review. The statute provides that in actions triable by the court, when a trial by jury of specific questions of fact is had, an error in the admission or exclusion of evidence, or in any other ruling, may, in the discretion of the court, on review, be disregarded if the court is of the opinion that substantial justice does not require the granting of a new trial. And where the judge who presided at the trial neither entertains a motion for a new trial nor directs exceptions to be heard at the general term, a motion for a new trial can be made only at the term where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires. Code Civ. Proc. § 1003. This is somewhat analogous to the practice be
