Supreme Court, April, 1921. [Vol. 115. JAMES A. STILLMAN, Plaintiff, v. ANNE U. STILLMAN, and GUY STILLMAN, Defendants. (Supreme Court, Dutchess Special Term, April, 1921.) Evidence - what are confidential communications — letters husband and wife divorce Code Civ. Pro. § 831. -- Letters between husband and wife are confidential communications and their contents may not be disclosed unless the privilege is waived. A letter from a wife to her husband, which is a confidential communication and within the prohibition of section 831 of the Code of Civil Procedure, may not be considered, over her objection, upon a motion for alimony and counsel fees in the husband's action for a divorce. Matters concerning which plaintiff cannot testify to on the trial, or the hearing upon the merits of a special proceeding, founded upon an allegation of adultery, under section 831 of the Code of Civil Procedure, he will not be permitted to put into his affidavit filed in opposition to a motion for alimony and counsel fees, when defendant objects. Upon such motion it is debatable whether letters alleged to have been written by the corespondent to defendant and received by her and claimed to have been thereafter delivered to plaintiff, should be received upon the plaintiff's affidavit unaccompanied by other affidavits, and when defendant objects, such letters will not be considered by the court. MOTION for permission to serve an amended answer and for alimony and counsel fee. Cornelius J. Sullivan (Delancey Nicoll, Outerbridge Horsey, of counsel), for plaintiff. Cadwalader, Wickersham & Taft (John B. Stanchfield and John F. Brennan, of counsel), for defendant Anne U. Stillman. John E. Mack, guardian ad litem for defendant Guy Stillman. Misc.] Supreme Court, April. 1921. MORSCHAUSER, J. This motion is made by the defendant Anne U. Stillman for permission to serve an amended answer and for alimony and counsel fee. The plaintiff consented to the granting of the order for permission to serve an amended answer, but opposed the motion for alimony and counsel fee. Before deciding the motion, I deem it proper to pass upon the exhibits: Exhibit "A" the alleged letter from defendant to plaintiff, and the Exhibits "B" to "H" inclusive, consisting of letters alleged to have been writen by the corespondent to defendant and received by her and claimed to have been delivered subsequently to the plaintiff. The defendant objects to the use of these exhibits by plaintiff. Section 831 of the Code of Civil Procedure provides as follows: 66 "§ 831. When husband and wife not competent witnesses; when competent.-A husband or wife is not competent to testify against the other, upon the trial of an action, or the hearing upon the merits of a special proceeding, founded upon an allegation of adultery, except to prove the marriage or disprove the allegation of adultery. However, if upon such trial or such hearing the party against whom the allegation of adultery is made produces evidence tending to prove any of the defenses thereto mentioned in section 1758 of this act, the other party is competent to testify in disproof of any such defense. A husband or wife shall not be compelled, or without consent of the other, if living, allowed to disclose a confidential communication, made by one to the other during marriage." Communications and transactions between husband and wife were early recognized as privileged and neither could be compelled to disclose what took place between them and neither was a competent witness to testify as to such transactions or communications of a confidential nature or induced by the marital relation. Supreme Court, April, 1921. [Vol. 115. From experience it was found that far less evil would result from the exclusion of such testimony than from its admission. It may in individual cases work hardship, but the destruction of confidence between a husband and wife would cause much misery and affect the marriage relation. This rule is founded upon sound public policy. Those living in the marriage relation should not be compelled or allowed to betray the mutual trust and confidence which such relation implies. When modified by legislative enactment, no wider interpretation has been given than the plain letter of the law demanded and when by statute the disqualification was removed allowing husband and wife to testify as against each other and compelling them to testify, the rule still obtained and did not affect the exclusion of privileged communications between the spouses under the common law rules. It is applicable, though terminated by divorce or by the death of one of the parties. Letters between husband and wife are within the protection of the rule as are oral communications, and the contents thereof can not be disclosed unless the privilege is waived. Bowman v. Patrick, 32 Fed. Repr. 368; Hopkins v. Grimshaw, 165 U. S. 342. In the Bowman case the wife's administrator found among her papers letters from her husband relating to matters in a suit in which he was then interested. The administrator in a spirit of hostility to the husband delivered the letters to the other side, which sought to use them, and the letters were held privileged. In the Hopkins case, Mr. Justice Gray, delivering the opinion of the court, on page 349, said: "At common law, upon grounds of public policy, husband and wife (with some exceptions not here material) were not permitted, even by consent, to give evidence for or against each other, or to testify, even after the end Misc.] Supreme Court, April, 1921. ing of the marriage relation by death or divorce, to private communications which took place between them while it lasted." In Millspaugh v. Potter, 62 App. Div. 521, Mr. Justice Smith said at page 524: "There it was sought to prove a confession by the wife to the husband which is clearly within the protection of the statute." Judge Parker in Warner v. Press Pub. Co., 132 N. Y. 181, on page 185 said: "The evidence offered could have no purpose useful to the defendant unless it tended to show that during such a conversation with her husband she said or did, or omitted to say or do something, from which it might be inferred that there existed an unlawful intimacy between her and Smith. "A conversation on such a subject between husband and wife seems to us to be clearly within the protection of the statute. "The appellant calls our attention to the decision in Parkhurst v. Berdell (110 N. Y. 386-393), in which Judge Earl, in speaking for the court, said: What are confidential communications within the meaning of the section? Clearly not all communications made between husband and wife when alone. * They are such communications as are expressly made confidential, or such as are of confidential nature, or induced by the marital relations.' "Clearly, the definition given does not exclude such a conversation as the defendant desired to prove from the protection of the statute. Its nature was not only confidential, but it was apparently induced by the marital relation, for it cannot be conceived that such a topic would have been the subject of discussion but for the existence of such relation between the parties. "A further test by which to determine whether a communication is confidential is suggested by the learned judge in characterizing the nature of the con Supreme Court, April, 1921. [Vol. 115. versations sought to be excluded in that case. He said: They were ordinary conversations relating to matters of business which there is no reason to suppose he would have been unwilling to hold in the presence of any person.' "It can not be supposed that both husband and wife would have been willing to discuss such a subject in the presence of other persons or would have consented to a repetition of the conversation by either party to it. Its nature, and the relation of the parties, forbade the thought of its being told to others, and the law stamped it with that seal of confidence which the parties in such a situation would feel no occasion to exact." In Hanor v. Housel, 128 App. Div. 801, said Mr. Justice Sewell on page 803: "It is equally clear that the court did not err in excluding the affidavit of the wife, or that part of the conversation between her and the plaintiff which tended to show that the defendant had had criminal intercourse with her. They were not only confidential, but they were apparently induced by the marital relation and clearly within the prohibition of section 831 of the Code of Civil Procedure, which provides that 'A husband or wife shall not be compelled, or without the consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage.'" There are actions not founded on the charge of adultery where the communications were held not to be confidential. In actions for alienation of a wife's affection proof of the ill-treatment of the wife by the husband is competent; profane and abusive language used by him to her is not a confidential communication. Millspaugh v. Potter, supra. In Fowler v. Fowler, 33 N. Y. St. Repr. 746, it was held that declarations made by a husband to his wife the second night after the marriage that he did not |