Opinion
July Term, 1898.
Order affirmed, without costs and without prejudice, as stated in the opinion.
Defendant rests her motion upon the grounds: (1) Surprise; (2) negligence of defendant's former counsel, and (3) because of newly-discovered evidence; which several grounds are discussed in an opinion delivered by the judge who held the Special Term that granted the order from which the appeal is taken. The discussion found in that opinion on those subjects is satisfactory. After a careful perusal of the affidavits and the case, the impression is not entertained that the testimony proposed to be given by the defendant would necessarily or probably produce a different result. Nor is the proof of the neglect and inattention of the former attorney of the defendant such as to warrant the court in interfering with the discretion which was exercised at Special Term when the order appealed from was made. There is no direct and positive evidence of adulterous intercourse between the defendant and Kemp, the alleged paramour. She now proposes to be permitted to have the case opened to the end that he may give testimony that he never had any sexual intercourse with her. An affidavit is submitted, made by him, to the effect that he never had sexual intercourse with her, and his affidavit attempts to explain why he did not attend upon the trial, and it indicates that he is willing to contradict many of the circumstances disclosed before the referee upon which the inference of actual intercourse between the defendant and himself was drawn by the referee. It is to be borne in mind that there was no positive evidence given before the referee of adulterous acts, although circumstances and incidents were disclosed which strongly pointed in the direction of the conclusion reached by the referee. Some doubt may be entertained as to whether a proper use was made of the letters alleged to have been written by the paramour to the defendant upon the trial. In Hobby v. Hobby (64 Barb. 277), in an action brought by the husband against the wife, a letter from the alleged paramour to the defendant was intercepted by the plaintiff and the letter never came to the knowledge or possession of the defendant, and it was held that it was not admissible in evidence against the wife "whether it confesses the adultery or discloses a state of feeling towards her, tending to prove it." Some question may be made as to whether there was a proper use of Exhibit No. 1 made upon the trial before the referee. It is not advisable that that question should be determined in considering the appeal from the motion to open the case; the question more appropriately belongs to the hearing when the motion for confirmation of the report of the referee shall be heard. In Moller v. Moller ( 115 N.Y. 466) it was held that the testimony of private detectives may be so corroborated by proof of facts and circumstances harmonizing therewith as to induce belief in its truth; and it was further said in that case, viz.: "A divorce should not be granted without evidence which is, after careful scrutiny, satisfactory, and can command the confidence of a careful, prudent and cautious judge." In McCarthy v. McCarthy ( 43 N.Y. 235) it was held that slight corroboration "is sufficient where the defendant fails to take the stand in his own behalf." In the case in hand it is to be observed that the defendant absolutely denies the commission of the acts alleged against her, and that denial must receive attention when an application is made to confirm the report of the referee. In Mott v. Mott ( 3 App. Div. 532) the rule in respect to the examination of evidence given in divorce cases is referred to, and it is said that the evidence "is to be weighed with prudence and care, and effect must be given to its just preponderance." Whether the evidence taken at the trial shall be deemed sufficient to support the conclusion of the referee adverse to the defendant upon the principal question need not be passed upon on this occasion, as the defendant is entitled to have that question considered by a Special Term, to which the report made by the referee shall be presented. Whether the evidence shall be held sufficient to show that the defendant was guilty of the commission of adultery, although it may indicate that she was indiscreet and had the opportunity to commit the adultery charged, will be a question for the consideration of the Special Term when the report is presented for confirmation. In Steffens v. Steffens (33 N.Y. St. Repr. 643) it was said: "The evidence in this case, while it may tend to show indiscretion on the part of defendant, is insufficient to establish the commission of adultery." The order appealed from should be affirmed, but, however, without prejudice to the rights of the defendant to oppose the confirmation of the referee's report or to set aside the same on the merits. Adams, J., not sitting.