
    William A. Hobby vs. Eliza A. Hobby.
    In an action by a husband, against his wife, for a divorce on the ground of adultery, a letter from the alleged paramour of the defendant, to her, written during, or immediately after the time of the alleged adulterous intercourse, and which was intercepted by the plaintiff, and never came to the knowledge or possession of the defendant, is not admissible in evidence against the wife; whether it confesses the adultery or discloses a state of feeling towards her, tending to prove it.
    Hor is such letter admissible as evidence to contradict the writer’s testimony as a witness.
    APPEAL from an order of the Special Term, denying a motion for a new trial.
    The action was brought for a divorce, and was tried at the Onondaga Circuit, in September, 1868. The principal question litigated upon the trial, was, whether the defendant had been guilty of adultery, with one Charles J. Clarke.
    The plaintiff’s evidence tended to show the fact of such adultery, which was contradicted by the testimony of Clarke. As evidence to prove the fact.of adulterous intercourse between the defendant and Clarke, the plaintiff offered in evidence, a letter written by Clarke to the defendant, dining the time, or immediately after the time of the alleged adulterous intercourse, which letter was intercepted by the plaintiff and did not come to the knowledge or possession of the defendant. The said letter was also offered in evidence to impeach the testimony of Clarke. It was rejected by the judge, to which the defendant’s counsel took an exception. The jury found a verdict for the defendant. The plaintiff moved for a new trial on exceptions to the ruling of the judge on the trial; and the only question is, whether the judge erred in excluding the letter.
    The circumstance under which the exception was taken, are detailed in the opinion of the court.
    
      C. B. Sedgwick, for the appellant.
    I. The evidence offered is admissible and competent on cross-examination, to prove that the state of the witness’ feelings and his actions towards the defendant were criminal, and not innocent as he represents them.
    II. It is always competent where the character and credibility of the witness are questioned, to prove that he has, out of court, made declarations inconsistent with his evidence. You are only .required to call his attention to the declarations offered and claimed to be inconsistent, so as to give him an opportunity for denial and explanation. (The Queen's case, 2 Brod. & Bing. 286, 315. 1 Phil. Ev. 293, 294, ed. of 1839.) The rule has been approved and followed in numerous cases in the State. (Everson v. Carpenter, 17 Wend. 419. Kimball v. Davis, 19 id. 437. Clapp v. Wilson, 5 Denio 285. 
      Sprague v. Cadwell, 12 Barb. 516. Stacy v. Graham, 14 N. Y. 492. Stephens v. The People, 19 id. 549.) It is peculiarly within the province of a jury to judge of the credit due a witness, when there are circumstances contradicting his testimony and affecting his credit; e. g. when to impeach his testimony the adverse party proved a letter written by him, conflicting with his statements on the stand. (Baker v. Arnold, 3 Cal. 279.) A letter written by a witness and containing statements which conflict with his testimony, may be read in evidence to impeach him. The question of the receipt of the letter or written declaration by the party, or whether the oral declaration offered in evidence, was made or communicated to the party, of course has no influence on this question. The only important question is, whether the declaration, oral or written, was made to any body and by the witness.
    III. The evidence was admissible as direct and affirma.tive evidence, tending to show the intimate and improper relations between the witness and the defendant, and the state of them affections. 1. The evidence in the case proves beyond doubt the great intimacy of the parties. 2. Clarke’s evidence admits this, and further proves that his feelings were those of attachment and love for a married woman. 3. The evidence tended strongly to show that his attachment and love was reciprocated. There was no pretence that she rejected or was in any degree displeased with his advances. 4. In this state of facts it should have been left to the jury to say whether this correspondence was not matter of previous arrangement, and whether a letter of the character of the one offered would not have been acceptable and pleasing to her. The writing of such a letter was the natural sequence to their former relations and conduct, as it appeared in the evidence. (1 Greenl. Ev. § 102, and cases cited. 2 Wait's Law and Prac. 390. 2 Stark. Ev. 356.) Undoubtedly this evidence would be stronger if the letter had been received and retained or answered by the defendant; bnt it is competent without. (Crowley v. Paige, 7 Car. & P. 789. 1 Greenl. Ev. § 449. Tenent v. Hamilton, 7 Cl. & Fin. 134.)
    
      D. Pratt, for the respondent.
    I. The letter from Clarke, directed to the defendant, was not competent to affect the credibility of Clarke. 1. If the letter was offered for the purpose of contradicting the statements of Clarke, as a witness, he should have been examined as to those parts of the letter, claimed to be in conflict with his testimony. (Stephens v. The People, 19 N. Y. 549 , 570; Hubbard v. Briggs, 31 id. 518,536. Stacy v. Graham, 14 id. 492.) (a.) The witness cannot be impeached, by showing that he had made declarations differing from his testimony, without first examining him as to such declarations, and giving him the privilege to explain, (b.) The same rule applies to written declarations which applies to oral. (Same cases.) (c.) The counsel should have directed the attention of the witness to those points of the letter which he claimed to be in conflict with his testimony upon the stand. 3. But the contents of the letter were not in conflict with the testimony he had given upon the trial, (a.) He had sworn that he had been very intimate with the woman and loved her; the letter showed the same, (b.) He was not examined as to the intensity of his love. The letter therefore in nowise contradicted his statements.
    II. It was not competent, as general evidence in the cause. 1. Having never come to her possession, the statements therein, were merely the statements of a third party, and not admissible. 3. In actions for crim. con. letters of the wife addressed to the husband, or a third party, are competent upon the question of damages, to show the terms upon which the husband and wife lived together, but in these cases, they are admitted with great caution. (2 Stark. Ev. 354.) (a.) They must be written previous to any suspicion of criminal intercourse. (Id.) (b.) Even the dates are held- not sufficient upon that point, but the time when written, must be actually proved, (c.) Upon the question of damages, the state of the wife’s affection towards her husband, previous to the criminal intercourse, becomes material, and her letters are competent upon that point, (d.) In this case, the feelings of Clarke towards the defendant, are not in issue. 3. The letter was not competent upon the issue of adultery, (a.) No adultery is admitted in the letter. (5.) If it was admitted, it would simply be the admission of a third party. It would be res inter alios acta.
    
    III. Such testimony could be very easily manufactured, and is therefore very dangerous. 1. A husband who wishes to get rid of his wife, might accuse her of adultery with some villian, and procure bim to write letters directed to her, which he could intercept, and thus be enabled to prove his accusation. 3. There is no case which goes to that extent. Where the wife has received the letters, they may be competent in connection with her acts, but where they have not been received by her, no case can be found authorizing their admission. 3. In Lovedon v. Lovedon, (2 Hagg. [Cons. R.] 2, 52,) Sir William Scott, held that intercepted letters from the wife to her paramour, were not admissible in an action for crirn. con. against the defendant, (a.) If the letters of the wife, to the paramour, which never reached him, are not admissible in an action by the husband, against him, the same rule would clearly exclude the letter in this case. (5.) The principles involved in the two cases are precisely the same. The state of her feelings towards the paramour, are quite as much involved as his feelings towards her. (c.) The question of adultery is involved in both cases, but the probabilities of its having been committed, would depend much more upon the state of the affections of the woman towards her alleged paramour, than upon the state of Ms affections towards her. (d.) In either case, the letters of a party are competent against him or her self, but not against the other. (2 Stark. 354, note o. Wright v. Doe, 4Bing. N. C. 489. S. C., 7 Ad. & El. 313.)
   By the Court, Morgan, J.

The adultery was alleged to have been committed at Memphis, in Onondaga County. While the defendant and the alleged paramour, Clarke, were boarding at the same house, and were upon admitted friendly terms with each other, the defendant left for Utica on a visit to her friends, and immediately after, Clarke, her alleged paramour, addressed her a letter, which was intercepted by her husband before it reached its destination. TMs letter was offered in evidence, not only as a confession that he was living in adulterous intercourse with the defendant, but as contradicting his testimony ; he having denied the adultery.

It should also be observed that on Ms direct examination he admitted that he was in the habit of spending a good deal of Ms time in the society of the defendant, visiting her in her room, going to meetings with her, and occasionally accompanying her to Syracuse and back again. During most of this time, her husband was absent from the county. Clarke, however, testified that he at no time had criminal intercourse with her. On his cross-examination, he stated that he thought much of the defendant, and perhaps lie was in love with her; but he did 'not know as it was reciprocated by her. He was then shown the letter, and admitted that he wrote it. At this point the letter was offered in evidence. The defendant objected, upon the ground that it never reached her. The plaintiff claimed that it was competent to show the extent of his affections for the defendant, and also to contradict his declaration, that he had no criminal intercourse with her. The judge reserved this question until the evidence was closed, when this offer was renewed and the objection sustained.

I am clearly of opinion that the letter was incompetent to prove, either the fact of adultery or the state of the witness’ feelings toward the defendant. If it had contained a direct admission of the adultery, it could not be evidence against the defendant.

Nor was it evidence of any other fact which tended in any manner to prove the adultery, as the alleged paramour could not, in the absence of the defendant, and without her knowledge, make declarations which could be used as evidence against her. It could no more be proved by his admission in a letter that never reached her, than by his declaration to a third person; and it is too clear to admit of question, that his declarations to other parties could not be shown to prove the state of Ms feelings towards either of the parties, if proof of such a fact was relevant to the issue to be tried. In Lovedon v. Lovedon, (2 Hagg. [Cons. R.] 51,) it was ruled that the letters of the wife to her paramour, not received by him, were not evidence against him, although they might be against her. For the same reason, the letter of her alleged paramour, not received by her, cannot be used as evidence against her, whether the letter confesses the adultery, or discloses a state of mind tending to prove it.

But the more important question is, whether the letter was admissible as evidence to contradict the witness.

It is hardly claimed by the plaintiff’s counsel that it contained an admission of the writer’s having committed an act of adultery with the defendant. The most that can be said is, that it was not such a letter as a prudent man would write to a married woman, unless their former intercourse had been quite familiar and to the very verge of guilty intercourse, although not irreconcilable with her innocence. If he confessed on the trial of the action that he loved her, this letter furnishes additional proof that he was fascinated with her.

He calls her his own “precious one”—Ms “darling”— expresses the most passionate love for her, and declares that he would sooner see her “dead, than love another as she had professed” to love him. This may be called the very madness of passion; and if the letter had reached her, and she had accepted and answered it without remonstrance, it would have furnished very strong evidence of improper familiarity between them, and may have changed the result of the trial altogether. But proof of improper familiarities, is not to be made out from his declarations in her absence, as we have already seen; and before the letter is admissible, it must appear that the admissions or declarations of love therein contained, are contradictory to his evidence on the stand, or in substantial conflict with it.

It would be very unjust towards this married woman to read in evidence the passionate declarations of this young man, without first showing that she is responsi-' ble for them. The letter contains matters that might prejudice her, without in the least contradicting anything said by the witness on the stand. It contains a statement that she had made prof essions of love to him ; and certainly this part of the letter could in no way be used to contradict anything'he had sworn to. The offer was to read the whole letter in evidence; not those parts which it was claimed contradicted the witness. Nor was the attention of the witness or court called to the particular expressions in the letter which it was claimed were in conflict with his evidence. .It is submitted, therefore, that according to the decisions in this State, the letter cannot be used as evidence to impeach the witness. It was not sufficient that the witness was in court and could be called upon to explain the alleged contradictions. (Sprague v. Cadwell, 12 Barb.,, 516.) But his attention must be called to these, in order to lay the foundation for .the evidence. (Hubbard v. Briggs, 31 N. Y. 537, Wright, J.) And this is equally necessary when the contradicting evidence is in writing, or when it is oral. (Stephens v. The People, 19 N. Y., 549.) In the case of Stephens v. The People, (supra,) the court held that when it was designed to contradict a witness by showing that the deposition made by him before the coroner was different from his evidence on the trial, the contradictory parts of the deposition must be read to him, in order to give him an opportunity for explanation. In Morris v. Myers, (11 Iowa, 538,) in a case very much like this, a letter was shown to the witness, on his cross-examination, and he admitted the handwriting, but did not read it, nor was his attention called to the alleged conflict between it and his evidence. The plaintiff then offered the letter in evidence to impeach the credibility of the witness; and it was held that the letter was inadmissible, as the proper foundation had not been laid, by calling the attention of the witness to the alleged conflict between the contents of the letter and his evidence, in such a manner as to give him an opportunity to explain. But in my opinion, there are other grounds for rejecting the letter. The rule allowing such contradictions, is stated in Baptist Church v. Brooklyn Fire Ins. Co., (28 N. Y. 160.) “If,” says Judge Denio, “a witness testify to the existence of a material fact within the issue, the opposite party may show that he had, out of court, made a contradictory statement as to that fact, with a view to affect his credit.” (See 3 Kern. 160.) This rule, by its terms, would exclude statements made out of court, which are not contradictory.

Thus, in Shaw v. Emery, (42 Maine, 59,) it was held not to apply to evidence which only showed the improbability of a transaction, as stated by the witness, but having no tendency to show that he had given a different account of it.

The alleged contradictory evidence in the case at bar, related to the state of the witness’ feelings and affections towards the defendant. The difference, however, is only in degree. The language of the letter describes greater heat of passion, perhaps, than the writer was willing to confess to on the trial; but there is no admission that he had been guilty of criminal intercourse with the defendant. The state of his affections towards her was a proper subject of inquiry, so far as they were reciprocated, and tended to prove the adultery. But there is, perhaps, no conflict between the language oí the letter in this respect, and the admissions made by the writer in his oral testimony. A difference in degree hardly furnishes grounds for alleging that the witness has contradicted himself.

[Onondaga General Term,

June 29, 1869.

Bacon, Foster, Mullin and Morgan, Justices.]

But if it is concluded that portions of the letter may have been properly used, in connection with the oral testimony of the writer, to discredit the witness—as to which I have considerable doubt—still there is no ground upon which it can be claimed that the letter, as a whole, could be received either to prove the adultery or to contradict the witness. The letter purports to declare what is the state of the defendant’s affections towards the witness, and yet it never came to her knowledge. This portion of the letter surely could not be used against the defendant under pretence of contradicting the witness.

If there are portions of the letter which could be properly used as impeaching evidence, such portions only could have been offered in evidence, after the proper foundation was laid, by calling the witness’ attention to them. In my opinion, the order should be affirmed, and a new trial denied.

New trial denied.  