
    William H. Biers, Plaintiff, v. Anna Biers, Defendant.
    (Supreme Court, Erie Equity Term,
    December, 1911.)
    Witnesses — Capacity and competency of ■ witnesses in general —■ Husband and -wife —Action for divorce or separation — Condonation.
    While in a husband’s action for an absolute divorce he is disqualified under section 831 of the Code of Civil Procedure from testifying to the alleged acts of adultery by defendant, he may as a witness deny an alleged admission that he had condoned such adultery.
    Action for divorce.
    Thomas'E. Boyd, for plaintiff.
    John L. Ryan, for defendant.
   Bbown, J.

The plaintiff’s complaint contains allegations charging the defendant with adultery and demands judgment of divorce; the answer of the defendant alleges the affirmative defense that the acts of adultery charged in the complaint have been condoned and forgiven by the plaintiff. The adultery of the defendant,, as charged by the plaintiff, was established by satisfactory evidence.

The defendant called Mrs. Warner as a witness who testified, in substance, that the plaintiff had stated to the witness that he forced from the defendant’s paramour at the point of a revolver a confession that the paramour and the defendant had committed the adultery charged in the complaint; that, after obtaining such confession, he, the plaintiff, had forgiven the defendant — condoned the offense; that there had been a reconciliation between the plaintiff and the defendant and that they were going to start over and live happily together thereafter.

After offering some evidence seeking but failing to prove acts of adultery on the part of the plaintiff, the defendant rested.

The counsel for the plaintiff then called plaintiff to tho stand and interrogated him as to the alleged admission testified to by Mrs. Warner. All questions thus asked of plaintiff were objected to upon the ground that the witness was disqualified from testifying to anything except the marriage and to disprove adultery charged against him, under section 831 of the Code of Civil Procedure, which reads as follows: “A husband or a wife is not competent to testify against the other upon the trial of an action, or the hearing upon the merits of a special proceeding founded upon an allegation of adultery, except to prove the marriage, or disprove the allegations of adultery.” The objection was overruled. The witness denied the making of the admissions claimed by Mrs. Warner.

At the close of the evidence the defendant moved to strike out the evidence of the plaintiff, so received, as incompetent under section 831 of the Code.

In the absence of such denial by the plaintiff a- finding must be made that the plaintiff condoned the offense charged; with such denial of such admission properly in the ease, the plaintiff would be entitled to an interlocutory decree of divorce. Is such evidence competent?

Attention has been called to no authority deciding the precise question presented.

In Dickinson v. Dickinson, 63 Hun, 516, the plaintiff was held to be prohibited from testifying to her residence, that being a question of jurisdiction necessary to be established as a part of her affirmative case, the General Term saying “ she is incompetent to testify to anything involved in her right to a decree, except marriage and to disprove any charge of adultery against herself.”

In McCarthy v. McCarthy, 143 N. Y. 235, it was held that testimony of the plaintiff, while incompetent under section 831 of the Code upon the charges made by the plaintiff, was not erroneously received as bearing upon the counter charges made by the defendant. In this case, the plaintiff charged the defendant with adultery, and the defendant charged the plaintiff with adultery; the Court of Appeals say that two distinct issues were being tried simultaneously before the referee, to wit, the charges of the plaintiff and the counter charges of the defendant; that the evidence of the plaintiff was competent as to one issue and incompetent as to the other. It is difficult to see how the judgment of the Court of Appeals in this case can be reconciled with the provisions of section 831 of the Code upon any other theory than that a husband or wife is not competent to testify to any fact necessary to be proved as a part of their affirmative case against the other, upon the trial of an action founded upon an allegation of adultery except to prove marriage.

In Merrill v. Merrill, 41 App. Div. 347, the plaintiff testified that she cohabited with the defendant relying upon his statement that he had not committed the adultery charged; the Appellate Division reversed a judgment in favor of the defendant, upon the ground that the plaintiff, by so testifying, had established that there had not been a condonation. If section 831 of the Code made her incompetent" to testify that there had not been a condonation, it is impossible to understand how the Appellate Division would reverse a judgment solely upon such incompetent testimony.

In Karger v. Karger, 19 Misc. Rep. 236, the defendant testified to cohabitation after plaintiff was acquainted with the charges of adultery. . Upon the trial the plaintiff denied such cohabitation. This testimony was received upon a trial presided over by Justice Roger A. Pryor.

In Hennessey v. Hennessey, 58 How. Pr. 304, the plaintiff ' was allowed to testify that there had been no condonation.

Upon the application to the court for judgment on the default of a defendant, the plaintiff is a competent witness to prove that the offense has not been condoned (Rule 72, General Rules of Practice) and also to prove that no judgment lias been recovered against Mm for divorce on the grounds of adultery. Code Civ. Pro., § 1757. It is impossible to reconcile a statute that forbids plaintiff from testifying to a fact upon the trial of an issue with a statute that permits such testimony upon an inquest on default.

It is not a part of an affirmative case that there has been no condonation. In testifying that there was no condonation, the plaintiff was not testifying to anything upon the issue of the defendant’s adultery. He was simply testifying upon the issue of condonation as tendered by the defendant. The plaintiff is prohibited from testifying to anything' against the defendant that tends to make a case or establish his cause of action against her; he cannot testify to any offense of the defendant, nor to any fact necessary for him to establish to make out an affirmative case. Section 831 of the Code does not prohibit the plaintiff from denying the alleged admission of condonation claimed to have been made to Mrs. Warner. Defendant’s motion to strike out plaintiff’s evidence is denied. Interlocutory judgment ordered for plaintiff.

. Judgment accordingly.  