
    Charles F. Stevens, Resp’t, v. Carrie T. Stevens, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 7, 1889.)
    
    1. Divorce—Evidence.
    In an action for absolute divorce, evidence as to indiscretions of the defendant with other men than those with whom adultery is charged in the complaint is inadmissible.
    2. Same—Code Crv. Peo., § 831.
    Under § 831 of the Code a party is not confined to denials, but may testify to affirmative facts to disprove the allegation of adultery.
    Appeal from judgment entered in Chemung county, December 11, 1888, granting an absolute divorce to the plaintiff upon the ground of adultery. The case was tried before a referee.
    
      G. L. Smith, for app’lt; H. H. Rockwell, for resp’t.
   Merwin, J.

Upon the trial evidence was admitted, over the objection and exception of defendant, showing indiscretions of defendant with other men than those with whom adultery was charged in' the complaint. The appellant claims that this ruling was erroneous. This claim is supported by the case of Beadleston v. Beadleston, 20 N. Y. State Rep., 21; 2 N. Y. Supp., 809, where it was held that such evidence was inadmissible, it being said by Justice Daniels that evidence as to other specific misconduct, not relating to the particular charges in the complaint, was not proper and had no tendency whatever to establish those charges. A like view was entertained by the court in McDermont v. State, 13 Ohio St., 334, where it is said: “It by no means follows that a desire to have sexual intercourse with one person tends, legitimately, to prove a willingness to have like intercourse with another and different person. Indeed, the reverse is much the most probable; but, however this may be, the introduction of such proof is opposed to the well settled rules of evidence.

So in Washburn v. Washburn, 5 N. H., 195, it was held that evidence as to the unchaste character of the defendant was inadmissible, and that evidence showing improper conduct with other men, not named in the complaint, did not corroborate the confessions of defendant that she had committed adultery with the person charged. The defendant’s character is said not to be in issue. Humphrey v. Humphrey, 7 Conn., 117; Lockyer v. Lockyer, 1 Edmonds Cases, 107.

It is, however, claimed by plaintiff that the evidence of acts of ■defendant with other parties is competent, with a view of showing a lustful disposition. Upon this theory, apparently, it was received, following the views of Mr. Bishop in his work on Marriage and Divorce, 2d vol., § 625. That was said to be the doctrine of the English ecclesiastical court, and the cases of Forster v. Forster, 1 Haggards C. R., 144; Soilleux v. Soilleux, id., 373, were cited. The Forster case was for a divorce, brought by the husband against the wife, on the ground of adultery, in which recrimination was plead in bar. The question was whether this plea was sustained, and in this view the conduct of the husband with other parties was considered as having a bearing by way of corroboration.

In the Soilleux case the suit was against the husband, and the conduct of the defendant -with others than the person charged was in the case and deemed important. In neither of these cases was the admissibility of such evidence specially considered. In New Jersey such evidence was considered material in Derby v. Derby, 21 N. J. Eq., 36, 60, though in the case cited there was a general allegation under which it would have been admissible as relating to guilty conduct with persons unknown.

The trouble, it seems to me, with the evidence is that it goes outside of the issues made by the pleadings, and in effect presents new allegations that the other side is not expected to be able to meet. Acts of adultery not charged cannot be proved, Germond v. Germond, 6 Johns. Ch., 347.

The same principle would exclude evidence of conduct leading towards such acts or indicating a willingness to commit such acts, or, in other words, a lustful disposition. I think the evidence was not admissible.

The defendant was called as a witness in her own behalf, and gave evidence under the privilege given by § 831 of the Code permitting a party in such a case to “ disprove the allegation of adultery.” After she had testified in detail, denying specifically all the acts of adultery indicated by the evidence on the part of plaintiff, she was asked as to certain circumstances which it would have been competent and material for her to testify to, provided there was no limit upon her right to testify on the issue of adultery. This was excluded by the referee, and the ruling is sought to be justified on the ground that, under the section referred to, a party cannot testify to affirmative facts.

The Code does not limit the evidence to denials simply. It gives the right, generally, “ to disprove ” the allegation of adultery; to show that the allegation is not true. The plaintiff charges that a certain act was committed; the defendant not only can deny, but she can testify to any fact or circumstance, within her knowledge, competent and material on the question whether the act, as charged, was committed. In this way only can the expression “ to disprove ” be given its ordinary meaning.

There is nothing to show that the legislature intended any other result I think the ruling in this regard was erroneous.

The evidence on the part of the plaintiff was circumstantial. The rulings above discussed cannot fairly be deemed immaterial. It follows that the judgment must be reversed.

Judgment reversed on the exceptions and new trial ordered before another referee, costs to abide event.

Hardin, P. J., and Martin, J., concur.  