
    Alice T. Kinsey, Respondent, v. William S. Kinsey, Appellant.
    Second Department,
    October 6, 1911.
    Husband and wife —• separation — assault —practice—newly-discovered evidence —new trial.
    Upon the trial of an action for separation on the ground of cruelty the ,trial justice found that alleged assaults upon plaintiff by defendant were not proved, since plaintiff’s uncorroborated testimony was met by the denial of the defendant. He also found that there was no other proof that it was dangerous for plaintiff to live with defendant, and thereupon dismissed the complaint. A motion was made by plaintiff before another judge for a new trial on the ground of newly-discovered evidence. This evidence consisted of the statement of a gardener formerly employed by the husband, to the effect that he had heard the defendant swear at plaintiff and call her names several months before the date of the alleged assaults, and also of an affidavit by a newspaper publisher that the defendant had written a letter to her several months after the separation action was begun, in which he made very uncomplimentary remarks about his wife. The defendant had been questioned on the trial in regard to this letter, and had testified with substantial accuracy as to its contents.
    
      Held, that an order granting a new trial should be reversed and the motion denied.
    Appeal by the defendant, William S. Kinsey, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of. the. county of Westchester on the 22d day of December, 1910, as amended by an order entered on the 5 th' day of January, 1911, granting the plaintiff’s motion for a new trial on the ground of newly-discovered evidence.
    
      Joseph H. Beall, for the appellant.
    
      Henry C. Henderson, for the respondent.
   Woodward, J.:

This action was brought for a separation on the ground of cruelty. On the trial of the action the learned justice dismissed the complaint upon the merits, accompanying the decision with an opinion clearly setting forth the reasons therefor. The learned justice who heard the case being absent on his vacation at the time of entering judgment, a motion- was made before another justice for a new trial upon the ground of newly-discovered evidence, and this motion has been granted. From the order granting such motion the defendant appeals to this court. <

The plaintiff in her complaint alleges that On or about the 31st day of July, 1909, in the privacy of their room at Armour Villa Park, situated.in the City of Yonkers, * * - * the defendant, without any provocation, struck and beat the plaintiff, severely injuring her face; on or about the 8th day of August, 1909, at the same place, the defendant in a violent temper became abusive and threatened the plaintiff that unless she got out of the house soon, he would throw her out; on or about the 10th day of August, 1909, at the same place, the defendant again, without any provocation, struck the plaintiff and used insulting and abusive language to her, that the defendant’s entire course of conduct towards the plaintiff during the past four months [the complaint being verified the 14th day of September, 1909], has been uniformly insulting, brutal and abusive.” The learned trial justice reached the conclusion that there was not sufficient in the evidence to show that it was dangerous to the life, limb or health of the plaintiff to reside with the defendant, aside from alleged assaults upon her, and found that the evidence did not justify holding that such assaults had been committed; that the testimony as to such assaults was that of the plaintiff, uncorroborated, met by the emphatic denial of the defendant, and, therefore, not established.

The so-called newly-discovered evidence does not relate to the times of the alleged assaults, and cannot, therefore, tend in any manner to corroborate the plaintiff’s version. Henry. W. Vogel, who furnishes the principal alleged newly-discovered evidence, says that he was employed by the defendant to work about his place at Bronxville, and that he was in the employ of the said defendant for about five wéeks at said place,” and that he heard the defendant assail the- plaintiff; that this took place in the 'living room of the parties at Bronxville, and that he was on his way to the cellar at the time, and that he remained in the cellar and heard the defendant swear at the plaintiff and call her vile names. But the plaintiff made no allegation of anything occurring at the Bronxville residence in the spring of 1909; she says the assault occurred at the Yonkers residence on the 31st day of July, 1909, and was followed on the eighth and tenth of August by other assaults. If the alleged episode occurred at Bronxville, the plaintiff knew of it, yet she neither mentioned it in her complaint nor in her testimony, and she fails to show that she exercised any degree of' diligence in searching foi evidence of the alleged episode. She knew that Henry W. Vogel worked upon the premises; she knew that the difficulty, if it occurred, was due to her gift of an old piano to Vogel, and there is nothing to indicate that Vogel would not have told her all about what he had heard if she had mentioned the matter to him. What reason is there for supposing that any different result would occur if the court had before it the testimony of this man? . It does not in any degree tend to prove the acts of alleged assault occurring in Yonkers during the summer of 1909; it does not appear to have been important enough so that this dissatisfied wife remembered it when she was seeking to establish her right to a separation.

Then there is an affidavit from one Frances Benton to the effect- that some months after this action was started the % • i;1 1 defendant wrote her a letter, as publisher of a local newspaper, in which he objected to some article which Mrs. Benton had published, and in which he made some very uncomplimentary remarks about his wife'and her acts. There is nothing to indicate that the defendant intended this letter for publication; it related to a business matter, and the references to the defendant’s wife were made in connection with something which had been published in Mrs. Benton’s newspaper evidently in connection with the.action which was then pending. - The letter was not published to the public; it appears never to have left the hands of Mrs. Benton until it was delivered to the plaintiff after the trial of the action, and just what tendency this private letter, not intended to reach the plaintiff or the public generally, would have in establishing that the defendant had brutally assaulted his wife in July and August, 1909, more than a year prior to the date of the letter, is not clear. ■ But the most conclusive answer to the suggestion that this consti- • tutes newly-discovered evidence is found in the record of the trial, referred to in the respondent’s brief. It appears that the defend r ant, on cross-examination by plaintiff’s attorney, was questioned in reference to this very letter, and we are asked to hold that it is newly-discovered evidence because it is alleged that the'defendant did not truthfully disclose the contents of this letter. But the plaintiff, or her attorney, knew there was a letter in which references were made to the plaintiff, arid they could easily have procured the same, as there is no suggestion that Mrs. Benton did not deliver it promptly when called upon by the plaintiff, and if the defendant testified falsely as to its contents there might have been a Way of making the same appear to the court. But the truth is that the defendant appears to have indicated quite clearly the general character of the letter; he stated its contents as accurately, perhaps, as any man could have done who did not have the letter before him, and it is clearly not to he given the character of newly-discovered evidence, for its existence was known and no reason is given for not producing it upon the trial. Just how it would be competent under the pleadings in that action is not clear, and it certainly cannot be brought into the case now.

We fail to find any newly-discovered evidence in the sense that that term is understood in law, and it was error to grant the plaintiff’s motion for a new trial upon that ground.

The order appealed from should be reversed, without costs, and motion denied, without costs.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Order reversed,, without costs, and motion denied, without costs.  