
    ANONYMOUS.
    N. Y. Superior Court; Special Term,
    
      September, 1877.
    Appeal.—Adultery.—Divorce.—Evidence.—Reference.—Judgment on Report of Referee.—Code of Civil Procedure, § 1229.
    Where circumstantial evidence of adultery is relied on, from opportunity and intimacy, ill-health of the woman, so serious as to negative the idea of criminal disposition on her part, precludes the presumption of guilt, which might otherwise arise.
    
    It is competent to give in evidence defendant’s familiarities with the alleged paramour, at times anterior to the date alleged, 
    
    The judge to whom the report of a referee determining the issues in divorce is presented, on application for judgment thereon, should not review the facts found, and conclusions reached,' by the referee, and refuse judgment on the ground that the evidence is inadequate.
    In such a case, the remedy of the plaintiff, if dissatisfied with the result, is by appeal.
    
      Motion by defendant for judgment on report of a referee.
    The action was for divorce on the ground of adultery.
    It was referred to Hon. John M. Barbour, former Chief Judge of this court, to hear, try, and determine the issues therein.
    He found, as matter of fact, that all the allegations of adultery were not established, but that all other allegations of the complaint were,. He therefore found that defendant was entitled to a dismissal of the complaint, without costs.
    The following is the opinion of the referee, which accompanied his report.
    Barbour, ítéferee.—The evidence in this case shows:
    
      First. That the plaintiff and the defendant were married to each other in the city of New York, on October 11, 1875 ; that immediately upon said marriage, they left this city upon an excursion, passing, in their tour, through Baltimore, and then returned to New York ; that a short time after their said return, they sailed for Brazil, and arrived in that country some time prior to December 25, in the same year; that they remained in Brazil until the summer of 1876, when they again returned to this city; that during all that period the parties lived and cohabited together as husband and wife, and after their return, continued so to live with each other, in this city, until March 5, 1877, when the plaintiff left her husband.
    
      Second. That before the occurrence of any of the above mentioned events, and as early as the year 1873, the defendant became acquainted with a young lady named E-B-, then 18 or 19 years of age. The acquaintance thus formed ripened into such intimate relations between the said E-- and the defendant, that she became enciente by him, and about September 16 or 18, 1875 (less than a month before the marriage of the defendant to this plaintiff), the said E-sailed from this city to France ; on which occasion the defendant accompanied her to the steamer on which she was to sail, and there parted from her with mutual and very affectionate embraces. '
    IJpon the trial before me, the plaintiff’s counsel, for the purpose of showing further the intimate relations which he claimed to have existed between the defendant and E-B-, even after the marriage of the former to the plaintiff, exhibited in evidence, a paper or papers, which he alleged to be and constitute, in fact, a letter written and sent by the defendant to the said E-. The document, as a whole, consists of a considerable number of torn and cut pieces of note paper, which are firmly gummed by one written side of each upon another and blank sheet of paper, so that only one-half of the writing is exposed, and the connection is, of course, much broken. The fragments, however, are apparently all of the same kind of paper, and the writing upon it was proven to be, wholly, that of the defendant. Ho proof was given as to the manner in which the plaintiff obtained possession of it, nor was there any evidence that the paper was sent to Miss B--, and it was not addressed to her upon its face, by her full name. Considering all this, it is impossible for me to say that the strips or fragments of paper, so gummed together, constituted, as an entirety, a letter written by the defendant to E- B-. Two of those strips of paper, however, contain the name “E-,” and may, therefore, be considered as some evidence of the feelings of the defendant towards her? whether the same were written for the purpose of being-sent to her in the form of a letter, or not.
    They are as follows: “I have never loved any one as. I love you,—with the same holiness and -confidence asmarle my faith in my own dear E-,—my girl wife.
    “Have courage, love, and all will yet be well. Every day I feel you are growing dearer to me, for the-more I think of you, the more your devotion and unselfish love impress themselves on my heart. I have been a very bad boy, but, E-, if you will be strong and patient, I will repay the sacrifices you have made-for me by a life of devotion, so true and sincere, that your existence will seem a happy dream. A thousand kisses for my dear little wife, whom may God’s angels protect and guard. Jambs.”
    The plaintiff’s counsel also read what purports to be a complete letter in the defendant’s handwriting, dated at Bio de Janeiro, January 31, which was evidently written by him to the said E- B-, although it was not proven that it was ever sent to her. That letter commences, by way of address, with the words, “My own suffering wife,” and contains among many other affectionate expressions, the following language : “E-, darling, since I saw you carried away, I have not had one happy hour;—there is a void in my heart that you only can fill, and I pray the merciful God that you may be spared to me. I hope you wrote to. your papa and family that you were my wife. I told you to do so in Europe, and there was no longer any need of concealment. In the letter I wrote to your mamma, in reply to your father’s letter, I stated that the certificate of your marriage, &c., would be forthcoming on my return, and that your marriage took place on June 7, 1875.
    “ Had I to live again the last six months, how all would be changed! What I did was for the best, 1 thought I was securing your health in sending you •away, but now I feel it was a great error.”—“ Dear E-, have faith in my love and affection, for since we have parted, they have grown a hundred fold. Put faith in the goodness and mercy of Gfod, and take courage for the future. I cannot abandon the hope that one day we and our children shall kneel together to ask His pardon for the errors and weaknesses of our lives. Ho day passes that I do not pray for the dear, loving girl that’s far away. I wish I could express how much, •and how deeply I love you, but my words turn cold as I write them, and tears will come at the thought of you, far away, with one only friend near you, and the ■dearest one separated from you by an envious ocean. But my heart goes to you, daily and hourly, in the little room in France.”—
    “ Take good care of yourself, and make every preparation for your confinement. About a month ago, I sent you 30 pounds sterling. Oh, Gf-, darling, you d.o not know how sincerely I love you, nor how, daily •and nightly, I weep your absence.
    “ What would I not give to pillow once more my ■darling’s golden head upon my breast, and sleep the sleep of peaceful, happy love. I would give all of honor or wealth the world could offer me, and in the •sweet hope of being soon re-united to you, I now commend you to the guardianship of Grod. May His grace and mercy be upon you, and on both of us, His mercy, forgiveness, and protection,—is the prayer of your loving husband. Rasies.”
    On March 1, 1877, E- B-— returned from France to her father’s house in this city, and, after staying there a very short time, went on the same day and hired apartments, consisting of six rooms, in the house Ho. ——,-avenue, and went there to live.
    On hiring the apartments, she called herself Mrs. -[using in this the surname of the plaintiff], stated that she was a widow and a cousin of the defendant, and referred the landlord to him for information touching her character and responsibility. She remained there until March 7, during which period the defendant visited her in her rooms, frequently. On March 5, in the evening, she was taken sick, and then sent a message to the defendant, stating that Mrs. ——- was very sick, and desiring him to come to her rooms. The defendant thereupon Avent there and staid with Miss B-all the following night.
    On March 8, he was in her rooms again, and early in the morning of the 7th, he was seen there with no clothing upon him, except his pantaloons, a flannel Avrapper or undershirt, and a coat which he held together around his throat, by his hands. On the same March 7, Miss B-went in a carriage to a steamer, accompanied by the defendant, and sailed for France without him.
    On April 10, 1877, Miss B- returned to her rooms in--avenue, and remained there until May 1, during which period the defendant was there frequently, and after April 12, nearly all the time. When she left the place, on May 1, the defendant went Avith her, and they took with them a child named -[like the defendant].
    It also appears from the evidence, that when Miss B- first took possession of her rooms on - avenue, upon March 1, 1877, and during the entire period of her residence there, until she left on the 7th, she was an invalid, and compelled to use crutches in walking, because of some disease which greatly impaired the use of her lower limbs.
    At one time, her landlord, on going to her room, found her sitting or reclining upon the floor, and drawing herself along by her hands, as though she had no power in her legs and feet. When she left the house, to go to France, she put her crutches into the carriage, and then defendant lifted her into it. She told her landlord that she was troubled with a spinal weakness, and to a neighboring woman who called upon her, she stated that she had been spitting blood, and that she was very nervous. She was described by that witness as being perfectly white, when taken sick on March 5, and she was in the habit of taking medicine from a bottle marked “poison,” which smelt like laudanum.
    In Loveden v. Loveden (2 Hagg. Cons. 2), Lord Stowell said, in effect: It is a fundamental rule of evidence that it is not necessary to prove the direct fact of adultery. In almost every case the fact is inferred from circumstances that lead to it by fair inference, as a necessary conclusion. The only general rule that can be laid down upon the .subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion, for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations.
    Chief Justice Shaw, in Dunham v. Dunham (6 Am. Law Rep. 141), supposes a case in which a married woman is proved to have been found in an equivocal position with a man, not her husband, and then says :
    “If it were proved that she had previously shewn an unwarrantable predelection for that man,—if they had been detected in clandestine correspondence, sought stolen interviews, made passionate declarations, if her affection for her husband had been alienated, if it were shown that the mind and heart were already depraved, and nothing remained wanting but an opportunity to consummate the guilty purpose, then proof that such opportunity had occurred, would lead to the satisfactory conclusion, that the act had been committed.”
    The following authorities also show that it is competent to give in evidence, with effect, the defendant’s familiarities with the alleged particeps criminis, at times anterior to the fact charged in the complaint (The State v. Wallace, 9 N. II. 515 ; Burgess v. Burgess, 2 Hagg. Consist. 223 ; Commonwealth *. Merriam, 14 Hole. 518; Norfolk v. Germaine, 12 Sow. St. Tri. 929 ; Commonwealth «. Lahey, 14 Gray, 91 ; The State v. Marvin, 35 S. S. 22; Smith n. Smith, 4 Paige, 432).
    The evidence in this case shows very strong proofs of affection and attachment existing between the defendant and E- B---, prior to March, 1877, and continuing up to that time, and to March 7. Certainly no more conclusive evidence could be given of the feelings of the woman, than is to be found in the fact, that she had submitted herself to the defendant’s embraces, and had thereby become the mother of his child, and it would be difficult to imagine the existence of a warmer and more passionate love and affection than is exhibited in the writings addressed by the defendant to E——. Nor can it be doubted that the opportunity to renew the illicit intercourse between those parties was afforded in the apartments of E-, in - avenue. If then, it is true, as Mr. Bishop, in his work on divorces (§ 619) holds it to be, and as I think correctly, that every act of adultery implies three things : first, the opportunity, secondly, the disposition in the mind of the adulterer, and thirdly, the same in the mind of the particeps criminis, and that whenever those three are found to concur, the criminal fact must be found to have been committed, it seems clear, that, inasmuch as the opportunity existed, it would be impossible, considering also the circumstances and acts detailed by the witnesses which occurred between the parties in -- avenue, to avoid the conclusion that the adultery charged in the complaint was committed by the defendant with E- B——, if it were not for the evidence touching the health and particular physical condition of that lady, during her residence there, from March 1 to March 7.
    But Mr. Bishop qualifies the proposition put by him, as above, in these terms : i£If these three things do concur, still, the parties may not know the state of each other’s minds upon the subject, or they maybe restrained by fear, of they may be under some temporary incapacity or temporary absence of desire ” (lb.) / and that implied exception to the general rule is, doubtless, as well founded as is the rule itself.
    Now, the testimony in this case shows, very clearly, that during the entire period of the residence of Miss B- at - - avenue, from March 1 to March 7, her legs and feet were paralyzed to such an extent, owing, probably, to a spinal disease with which she was afflicted, that she was compelled to use crutches in walking or moving about from place to place, or to draw herself along with her hands, and that during one portion of that period she was so seriously ill as to require the services of others. In view of all that, I think it may reasonably be presumed, that she was so far physically incapacitated for sexual intercourse as to destroy or prevent all desire and inclination on her part to commit the offense charged in the complaint, and it is quite certain’; to my mind, that no man who was not a mere brute by instinct and habit, would entertain a thought of committing adultery with a woman thus physically diseased and afflicted. Indeed, the presumption that no adultery was then committed is fully as reasonable as a contrary presumption would be (See Williams v. Williams, ■supn'a).
    
    As the charge in the complaint is confined to the period between February 11 and March 8, it follows, in my opinion, that the plaintiff has failed to prove her case, and, for that reason, the defendant should have judgment dismissing the complaint, but without costs.”
    
      The defendant then moved for judgment on the report of the referee.
    
      Edward Browne (Browne & Rabe, attorneys), for the motion,
    objected that as no exceptions had been filed nor presented affecting regularity or the trial, plaintiffs could not ask the court to find from the evidence a different state of facts from those found by the referee.
    The special term should not review the testimony, and reverse the referee’s decision. The findings should not be interfered with at. special term (Code of Pro. § 272; Code of Civ. Pro. 1228).
    The mode of review is an appeal to the general term (Code of Pro. § 348 ; Code of Civ. Pro. 1346). But for rule 92 under the old practice, judgment in divorce could be entered upon referee’s report (Bihin v. Bihin, 17 Abb. Pr. 19); but rule 92 had been made a part of the New Code, § 1229, so that the practice under that rule would prevail. The practice is fully stated in Sullivan v. Sullivan, 41 Super. Ct. (J. & S.) 519.
    
      John Townshend, opposed.
    
      
       Beside the cases cited in the opinion, see, also, Westmeath v. Westmeath, 2 Hagg. Ecc. Supp. 1; S. C., 4 Eng. Ecc. 438; Inskeep v. Inskeep, 5 Clarke, Iowa, 204; Freeman v. Freeman, 31 Wisc. 535; Moser v. Moser, 29 Ala. 313; Ferguson v. Ferguson, 3 Sandf. 307; Anon, 17 Abb. Pr. 48, and cases cited; Mehle v. Lapeyrollerie, 16 La. An. 4 (Supreme Ct., 1861); Grant v. Grant, 2 Curt. Ecc. 16; Faussett v. Faussett, 7 Notes Ecc. & Mat. Cas. 88; Hamerton v. Hamerton, 2 Hagg. Ecc. 8; Caton v. Caton, 7 Notes Ecc. & Mat. Cas. 16 ; Mayer v. Mayer, 21 N. J. Eq. (6 C. E. Greene) 246; Davidson v. Davidson, 1 Deane, 132; Simmons v. Simmons, 1 Robt. Ecc. 566; S. C. more fully in 5 Notes of Cas. 324; 6 Id. 578; Stone v. Stone, 3 Id. 278, 304; Noverre v. Noverre, 1 Robt. Ecc. 428; Hunt v. Hunt, Deane, 121; Fraser v. Fraser, 5 Notes of Cas. 11; Mellin v. Taylor, 3 Bing. N. C. 109; King v. King, 4 Scotch Sess. Cas. 2d Series, 583; Berckmans v. Berckmans, 17 N. J. Eq. (2 C. E. Greene) 453, affi’g 16 Id. 122; Dunlap v. Robinson, 28 Ala. N. S. 100; Gethin v. Gethin, 2 Sw. & Tr. 560-563.
    
    
      
       On this subject, and as to strictness of pleading the fact, see, in addition to the cases cited in the opinion: Conant v. Conant, 10 Cal. 249; Ribet v. Ribet, 39 Ala. 348; Ford v. Ford, 104 Mass. 192; Briggs v. Briggs, 2 Clarke (Mich.), 34; Clutch v. Clutch, 1 Saxt. (N. J.) 474; Angier v. Angier, 13 P. F. Smith (Pa.), 450; Brown v. Brown, 2 R. I. 381; Hancock’s appeal, 64 Pa. St. 470; Morrell v. Morrell, 1 Barb. 318; Garrat v. Garrat, 4 Yeates (Pa.), 244; Steele v. Steele, 1 Dall. (Pa.), 409; Pragmiori v. Pragmiori, 7 Robt. 302; Graves v. Graves, 2 Cuteis, 235.
    
   Van Vorst, J.

I do not see how I can withhold an order directing judgment to be entered upon the report of the referee, to whom it was referred to hear, try and determine the issues in this action, which is one for divorce. The referee has distinctly found that the plaintiff has failed to prove that the adulteries charged in the complaint, or any or either of them, was or were committed, as alleged in the complaint. The result reached by him is, that the complaint be dismissed, without costs. I do not think that I would be warranted in substituting my judgment for that of the referee upon the evidence. I might differ from the referee in a deduction from the evidence unfavorable to the defendant. But I am persuaded that I cannot nullify his report. It is true that no judgment can be entered upon the report, except by the court (Code of Civ. Pro. § 1229). But the court, at special term, would not be justified in reviewing the facts found and conclusions reached by a referee who has been commissioned to hear, try and determine the issues, upon an application made by the prevailing party for judgment.

The remedy for the plaintiff, if dissatisfied with the result, is by an appeal from the judgment to the general term.

There was no appeal.  