
    Dickinson v. Dickinson.
    
      (Supreme Court, General Term, First Department.
    
    March 31, 1892.)
    Divorce—Jurisdiction—Residence of Parties—Evidence.
    Under Code Civil Proc. § 831, which provides that “a husband or wife is not competent to testify against the other upon the trial of an action * * * founded upon an allegation of adultery, except to prove the marriage, or disprove the allegation of adultery, ” a wife who is plaintiff in an action for divorce on the ground of adultery is incompetent to testify to the jurisdictional facts required by section 1756, namely, the venue of the offense and the residence of the parties.
    Appeal from special term, Hew York county.
    Action by Mary A. Dickinson against Albert E. Dickinson for divorce. From a judgment granting the divorce, defendant appeals.
    ¡Reversed.
    Argued before Van Brunt, P. J., and Patterson and O’Brien, JJ. -
    
      Stimson & Williams, (F. P. Johnson, of counsel,) for appellant. Stoddart <6 Hart, (George William Hart, Jr., of counsel,) for respondent.
   Patterson, J.

This judgment must be reversed for error in the admission of testimony. The action was for divorce, the plaintiff suing on an allegationof adultery on the part of the defendant. It appeared in evidence that the defendant had procured a decree of divorce against the plaintiff in Illinois. After procuring the decree referred to, the defendant married again, and the adultery charged is his cohabitation with the woman to whom he claims to have been so married. The present plaintiff, basing her action upon that alleged adultery, was called as a witness on her own behalf. She had set up in her complaint the jurisdictional facts required in actions of this character. She averred that the plaintiff and defendant had been actual inhabitants of the state of Hew York, and that “this plaintiff for eight years last past has been and now is an actual inhabitant of the city, county, and state of Hew York.” The action was commenced in June, 1889. The adultery charged is alleged to have been committed at various times since the 15th day of August, 1887. The answer denies the residence of the plaintiff, and puts it in issue, both as to the time of the alleged commission of the acts of adultery charged upon the defendant, and at the time of the institution of this action. The plaintiff was allowed to testify, under objection and exceptions, as to her residence, in both aspects in which that subject became material on the trial. The qualifications of a husband or wife to bring an action for divorce in this state, and the grounds upon which a decree may be pronounced, are matters of positive legislation. That was expressly decided in Erkenbrach v. Erikenbrach, 96 N. Y. 456. As to the right to sue, it is regulated by the Code of Civil Procedure. When, as in the present case, there is sought a divorce a vinculo, on the ground of adultery, it is provided by section 1756 of that Code that, when the parties were not both residents of the state when the offense was committed, and where they were not married in this state, where the offense was not committed in this jurisdiction while the injured party was a resident therein, (and such is this case,) the plaintiff must have been a resident of this state when the offense was committed and also when the action was brought. As lying at the very foundation of the suit, therefore, it was necessary to establish two jurisdictional facts, and they were distinctly put in issue. The general averment of the complaint that the plaintiff had resided in the state of Hew York for eight years before the commencement of her present action covers both requirements as a matter of pleading, but, when the record is critically examined, we cannot find any sufficient proof of that allegation besides the plaintiff’s own testimony. There were three other witnesses called on that subject, viz., Albert S. Dickinson, Henry P. Huling, and Mary Roberts; but it is quite clear that their testimony is utterly inconclusive on the subject, and, if there had been no other testimony than theirs, it would not have been an erroneous finding of fact had the learned judge determined that, when the acts of adultery complained of were committed, the plaintiff resided in Hew Jersey, and not in Hew York. The only real testimony as to residence at the times last referred to is that of the plaintiff herself, and it seems too plain for argument that, under section 831 of the Code of Civil Procedure, she was incompetent to testify to anything involved in her right to a decree, except as to marriage, and to disprove any charge of adultery against herself. Jurisdictional facts must be provenas well as merits, when they are put in issue, and there was clear error in allowing the plaintiff to testify as to those facts. The inhibition of the statute applied, and we cannot say that it was not that very testimony which induced the learned judge at the special term to find that the plaintiff had that legal status which was a prerequisite to her maintaining her action in the courts of this state. She had formerly brought a suit in Mew Jersey for the same relief, and on the same state of facts, and, on the testimony there adduced, it was decided that she was not a resident of that state, but of Mew York. She had sworn in that suit that she lived in Mew Jersey, and not in Mew York, when the alleged acts of adultery were committed by the defendant. Precisely in what aspect of the proof in the court of chancery in Mew Jersey that conclusion was reached we do not know. It may have been a question of credibility, but because the court in that state found she did not reside there is no reason why, on this record, we should find that she did reside here. On the state of the proof, and in view of the plaintiff being allowed to testify to her residence as she did, we think the judgment should be reversed, and a new trial ordered, with costs to abide the event. All concur. 
      
       Section 831 is 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. A husband or wife shall not be compelled, or, without the consent of the other, if living, allowed, to disclose a confidential communication, made by one to the other, during marriage. In an action for criminal conversation, the plaintiff’s wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy, except that she cannot, without the plaintiff’s consent, disclose any confidential communication had or made between herself and the plaintiff. ”
     