Imágenes de páginas
PDF
EPUB

Misc.]

Supreme Court, April, 1921.

love her and had made a mistake in marrying her, which was the beginning of a course of ill-treatment, was not a privileged communication.

Norris v. Lee, 136 App. Div. 685, was an action on a promissory note made by a husband and wife. A letter was written by the husband to his wife to chronicle his daily doings and stating that he would settle with the plaintiff when he obtained certain moneys. It was held that such letter should not be excluded as confidential communication.

The learned presiding justice of the Appellate Division in this department, Mr. Justice Jenks, said on page 686: "The letter is an ordinary epistle wherein the husband writes to his wife to chronicle the weather, his daily doings, his efforts to find a summer place for the family, and such petty matters. It contains a single sentence which might be pertinent.' I will settle with your mother just as soon as I can get my hands on the money from the mortgage which I hope to do next week.' I think that this was not a confidential communication within the inhibition of the Code of Civil Procedure (§ 831)."

It is a debatable question whether Exhibits "B" to "H" should be received upon plaintiff's affidavit unaccompanied by other affidavits. Matters plaintiff cannot testify to on the trial or hearing on the merits of a special proceeding under section 831 of the Code of Civil Procedure he should not be permitted to place in an affidavit on a motion of this kind when the defendant objects. He cannot testify to the handwriting of the defendant or of the corespondent in actions of this kind. The husband or wife in actions for divorce founded on adultery is permitted to testify to the marriage or disprove the allegations of adultery. And section 831 of the Code did not limit the testimony to a denial simply but gave the right generally" to dis

Supreme Court, April, 1921.

[Vol. 115. prove the allegation of adultery," to show that the allegation was not true, and that the defendant could not only deny, but could testify to, any fact or circumstances, within defendant's knowledge, competent and material on the question as to whether the act as charged was committed.

In Biers v. Biers, 156 App. Div. 409, at page 411, the learned justice (McLennan, P. J.) said: "This section has been held to mean that the alleged guilty party is not limited to denying specifically the charges of adultery, but may testify to any fact or circumstance within his or her knowledge, competent and material on the question as to whether the act, as charged, was committed. (Huntley v. Huntley, 73 Hun, 261; Stevens v. Stevens, 54 id. 490; O'Hara v. O'Hara, 136 App. Div. 378.) The effect of these decisions is that in order to disprove, the allegation of adultery' the party charged may testify to facts tending to deny the charges made, or to prove that they were procured to be committed or connived at by the other party to the marriage, or that the offenses have been forgiven and condoned."

And at page 413 the learned justice said: "It is urged by the respondent that the provisions of section 831 are intended only to prohibit the husband or wife from testifying against the other upon the issue of adultery in an action for absolute divorce, and that if other issues are tendered by the defendant, such as connivance, or condonation, either party may testify without restraint upon such issues. We are unable to agree with this contention. It is contrary to the plain reading of the statute, and the language of the section has been strictly applied by the courts in all cases, so far as we have been able to find. In Valentine v. Valentine (87 App. Div. 156) it was held error to allow the wife to testify against her husband concerning his

Misc.]

Supreme Court, April, 1921.

property and income. In Dickinson v. Dickinson (63 Hun, 516) it was held error to permit the plaintiff to testify to the fact of her residence where jurisdictional facts were in issue. (See, also, Finn v. Finn, 12 Hun, 339; Taylor v. Taylor, 123 App. Div. 220; Colwell v. Colwell, 14 id. 80; Budd v. Budd, 55 id. 113.) "

While the party charged could testify to facts tending to deny the charges made, or to prove that they were procured to be committed or condoned at by the other party to the marriage, or that the offenses have been forgiven or condoned, the plaintiff by his testimony could not disprove it. The decision in the Biers case was overcome by an amendment to section 831 of the Code by chapter 181, Laws of 1915, as follows:

66

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 seventeen hundred and fifty-eight of this act, the other party is competent to testify in disproof of any such defense."

Mr. Nichols in his work on New York Practice (Vol. 1, p. 547), said: "The question as to whether a person incompetent to testify as a witness can make an affidavit which will be considered, and the effect thereof, is of considerable interest, but no positive rule has been laid down in regard thereto in this state. It has been held that where the testimony of the plaintiff would be incompetent, by reason of its relating to a transaction with a deceased person, the plaintiff's affidavit is not alone sufficient to support an injunction and the appointment of a receiver, and that a person serving a sentence on a conviction for a felony, can not make an affidavit. *." Referring to Gregory v. Gregory, 33 N. Y. Super. Ct. (1 J. & S.) 1; People ex rel. Lord v. Robertson, 26 How. Pr. 90. See,

*

Supreme Court, April, 1921.

[Vol. 115. also, Capes v. Capes, 173 App. Div. 142; Colwell v. Colwell, 14 id. 80.

In the case of People ex rel. Lord v. Robertson, supra, an insolvent debtor was disqualified from making an affidavit to his petition for his discharge from imprisonment under the insolvent laws and Mr. Justice Lott said at pages 91 and 92: "The disqualification is general. It extends to all cases where the declaration of the party is to be used in a judicial proceeding for the purpose of establishing or proving some fact; and it applies both to written and oral evidence. It is not limited to testimony or evidence on the trial of causes between parties, but in terms applies to all matters civil or criminal. The provision is intended as a rule of evidence, and as protection to the community against the peril of testimony from a person guilty of an offence implying such dereliction of moral principle as in the opinion of the legislature to carry with it the presumption of a total disregard to the obligations of an oath.

"Insolvent proceedings are very important in their consequences, extending, in some cases, to the absolute discharge of debts, and in others limiting parties in the remedies for their collection, and affidavits of the applicant are required, of more or less stringency, to guard against fraud, and for the protection of the rights of creditors to be affected by them.

"There is, therefore, as much if not more reason for disqualifying a person convicted of a felony from making such an affidavit, as there is to disqualify him from being a witness on trial of a cause between third persons.

"The effect and extent of the disability created by the statute of a similar character in England was discussed and considered In re Sawyer (2 Adol. & Ellis, N. S. p. 721), and it was held to extend to an

Misc.]

Supreme Court, April, 1921.

affidavit which had been used to show cause against a rule calling upon another party to answer certain matters, and the court ordered the affidavit to be taken off the files. (See also 1 Greenleaf on Evidence, sec. 374.) '

The affidavit must be made by a person having personal knowledge of the facts and who is legally competent to testify under oath. 2 Cyc. 5.

There are numerous methods by which these exhibits "B" to "H" may be made competent and proved, but not by the testimony of the plaintiff or by his affidavit, where objection is made thereto.

The exhibits should not be considered by me upon this motion. There are many statements in the respective affidavits of plaintiff and defendant that I believe are not competent in a case of this kind. I did not consider them on this motion when I believed they violated the rule.

The plaintiff presents with his affidavit the testimony taken at the hearings before the learned referee as to the acts and conduct of the defendant. She denies these acts and conduct in her affidavit. The trial is pending and she has not been examined. The defendant has amended her answer and charges acts and conduct upon the plaintiff of similar character as charged by him against her and such acts are supported by affidavits of different persons. She does not seek a divorce but pleads recrimination against the defendant as a defense. If the acts and conduct as charged against each other are sustained, neither will be entitled to a decree.

"Sec. 1758. When divorce denied, although adultery proved. In either of the following cases, the plaintiff is not entitled to a divorce, although the adultery is established: (Subdivision 4) Where the plaintiff has also been guilty of adultery, under

« AnteriorContinuar »