
    Alvina D. Budd, Appellant, v. Atlas A. Budd, Respondent.
    
      Testimony of a husband in an action for an absolute divorce — when incompetent — admissions of a co-respondent incompetent.
    
    Where a wife brings an action against her husband to procure a separation, because of cruel and inhuman treatment, in which the husband interposes an - answer praying for a divorce upon the ground of her adultery with one Greenwood, and upon the trial one of the defendant’s witnesses testifies that on or about September 6, 1897, he saw the plaintiff in a bedroom with one Oles, a carpenter, then working about the residence of the plaintiff and her husband, under circumstances indicating that there existed improper relations between them, in reply to which the plaintiff testifies that she had never seen and did not know Oles, and that all the carpenters at work on the premises had left by the twenty-sixth of August, evidence by the husband that Oles was a carpenter who worked all over the house and that he did not leave such work until about September twentieth, is incompetent under section 831 of the Code of Civil Procedure.
    
      The admission of such evidence constitutes error requiring the reversal of a. judgment granting a divorce upon the ground that the plaintiff committed adultery with one Greenwood, as, although it was probably not relevant evidence to establish adultery with Greenwood, it could not fail to prejudice the-referee against the plaintiff.
    Upon the cross-examination of a witness who testified that he had detected the-plaintiff in the act of adultery with Greenwood, it appeared that Greenwood came to the witness’ store immediately after committing the offense; the plaintiff asked the witness if he had then said anything to Greenwood about having-seen him with the plaintiff, to which the witness answered “ Nó.” The referee then asked him if Greenwood said anything to him about it,.to which th& witness replied, “ He told me not to say anything.”
    
      Held, that evidence that Greenwood had substantially admitted the commission of the offense charged was not competent against the plaintiff, and that the-admission of this testimony required a reversal of the judgment;
    That the plaintiff had not opened the door for the incompetent testimony by asking the witness if he said anything to Greenwood about having seen him with, the plaintiff.
    Kellogg, J., dissented.
    Appeal by the plaintiff, Alvina D. Budd, from a judgment of’ the Supreme Court in favor of the defendant, entered in the office of' the clerk of the county of Warren bn the 30th day of January, 190Ó,, upon the report of a referee dismissing the plaintiff’s complaiút and granting the defendant an absolute divorce, with notice of an intention to bring up for review on such appeal an order made at the Washington Special Term, bearing date the 22d day of January, 1900, and entered in the office of the clerk of the county of Warren, confirming tlie report of the referee.
    
      H. A: Howard and C. H Sturges, for the appellant.
    
      Alvah Fairlee, for the respondent.
   Parker, P. J.:

The plaintiff brought this action to procure a separation on the ground of cruel and inhuman treatment; The husband answered, denying such charges and setting up as a counterclaim adultery on the part of the wife, and asked for a divorce from her on that ground. ■

The referee to whom the issues were referred found that the defendant was not guilty of the treatment charged against him, but. that the wife was guilty of adultery with one Greenwood, and ordered. judgment dismissing the complaint and awarding a divorce to the husband from the wife.

From that judgment this appeal is taken.

Upon this record, therefore, the only questions we need examine are the sufficiency of the evidence to sustain the finding that adultery was committed with Greenwood, and the exceptions taken which bear upon the question of adultery.

The evidence is not by any means conclusive, but it depends so much upon the veracity of the witnesses that it is not a case where we should reverse on the ground that the weight of evidence is against the referee’s conclusion.

There are, however, one or two exceptions' to . the admission of evidence in the case which seem to be well taken.

A witness, Cooper, had testified that he, on or about September 6 or 7, 1897, saw the plaintiff in a bedroom with one Oles under circumstances indicating that there were improper relations between them; that Oles was a carpenter then working upon the house where plaintiff and her husband then lived. In reply to this charge the plaintiff testified that she had never seen and did not know Oles, and that all the carpenter work on the house was finished and the carpenters left by the twenty-sixth day of August. Subsequently the husband was allowed to testify, under the plaintiff’s objection and exception, that Oles was a carpenter who worked up stairs and all over the house, and that he did not leave such work until about. September twentieth. This evidence was of a fact corroborative of the testimony of Cooper and contradicting the wife oh the question whether she did or did not have improper relations with Oles. Clearly such evidence by the husband was inadmissible under section 831 of the Code. He was not a competent witness against her upon those questions, and the exception to its admissibility was well taken. '

The more serious question is, was it harmful error ?

Evidence of adulterous intercourse, or lewd conduct, with Oles was probably not relevant evidence to establish adultery with Greenwood (Stevens v. Stevens, 54 Hun, 490), but surely such conduct could not fail to prejudice the referee against the plaintiff. If he believed Cooper’s testimony, it would not only operate against her character for chastity but also for veracity, because she testified dis.tinctly that she did not know Oles and to her knowledge had never seen him. So- the corroborative testimony of the husband was to a fact very damaging in its character to the plaintiff. The referee, ■however, stated that he admitted the evidence so far as it tended to contradict the affirmative evidence of the plaintiff, and he held that it did not tend to prove adultery by the plaintiff. By affirmative ■evidence of the plaintiff he meant evidence tending to establish the charges set up in her complaint. But as to who Oles was, and when he left the house, was utterly immaterial on any issue so presented. It had not the slightest bearing on any of those questions, but, as stated above, it did have a serious bearing upon the question of-plaintiff’s chastity and veracity.

The refereé’s opinion indicates that he gave great force to acts on her part prior to the adultery with Greenwood,-and which were testified to by “ disinterested witnesses,” one of whom presumably was Cooper. I conclude that this evidence of the husband, being in fact illegal and improperly admitted, must be' deemed to have been prejudicial to the plaintiff, andj therefore, to be reversible error.

During the trial the witness King, called by the defendant,, had testified that on October 16, 1897, he had seen the plaintiff in the act of adultery with Greenwood at the house where she and her husband tiffin lived. On cross-examination it appeared that right after that Greenwood had been down at the witness’ store, and witness was. asked by the plaintiff if he had then said anything to Greenwood about having seen him with the plaintiff. He answered “ no.” The referee then asked him if Greenwood said anything to' him about it. The witness answered: “ He told me not to say anything.” The referee then asked : “ Is that all ? ” Witness replied: “ That is all he said.” All this was taken under plaintiff’s objection, motion to strike out and exception. It is sought to sustain this evidence bn the ground that the plaintiff .had opened the door for it. But the plaintiff had not asked for anything that was there said by either the witness or Greenwood. The answer to lier inquiry must have been-yes or no. It did not call for what was said. But the referee went further and received in evidence what Greenwood said.

Such evidence was not justified by the question that plaintiff had asked. It was not part of any conversation that she had drawn out. Hence it seems to have been clearly erroneous. Was it harmful to the plaintiff ? It was evidence directly to the point at issue. Substantially, it was an admission by Greenwood that King had seen him in the act, and, therefore, was not only inadmissible as against the plaintiff, but it is of a character very likely to prejudice her. I am of the opinion that upon a close question of fact, such as this case presents, we should treat it as reversible error.

I conclude that the judgment should be reversed, the referee discharged and a new trial granted, costs to. the appellant to, abide. the event.

All concurred, except Kellogg, J., dissenting in a memorandum.

Kellogg, J. (dissenting):

I think the evidence of defendant Budd as to Oles being employed as a' carpenter and on the premises until September twentieth was competent. It had this bearing at least on the credit to be given to the testimony of plaintiff on the charge of inhuman treatment, and was so remote on any charge of adultery that it could have had no bearing on that; besides the referee does not find that plaintiff was guilty of adultery with Oles.

.. The evidence of witness King, as to what Greenwood said to him, “He told me not to say anything,” is so far immaterial as to lack any weight. This was after the occurrence sworn to and tends to prove nothing. The adultery sworn to was not proven by doubtful circumstances. Such circumstances as might be colored or given a criminal meaning by any expression Greenwood could have used then, or later, that what was by him said is wholly immaterial as bearing on the act of adultery.

I think the judgment should be affirmed.

Judgment reversed and referee discharged,-and new trial granted with costs to abide event.  