
    Charles S. Whitney, Resp’t, v. Sarah E. Whitney, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April, 1894.)
    
    1. Appeal—Conflicting evidence.
    A verdict, in an. action for divorce, upon conflicting evidence, where the evidence is sufficient, to support it, will not be disturbed
    8. Divorce—Questions stated.
    An order, based upon the stipulation of the attorneys, in an action for divorce, stating the question to he tried hy the jury, waives the right to have, preliminarily to the trial, any questions more specifically stated and settled.
    3. Appeal—Motion for new trial.
    When no motiom for a new trial is made or direction given for the exceptions to be first heard at general term, the defendant is in no position to raise on appeal, as against the verdict, any question upon the rulings in the reception or rejection of evidence at the trial, or as to the force or weight of the evidence in support of the verdict.
    4. Trial—Adjournment.
    A motion to postpone the trial, on ground of inability of party to attend, is addressed to the discretion of the court.
    Appeal from a judgment in an action for divorce entered on a verdict of Allegany circuit and on the decision of the court thereupon filed in favor of the plaintiff. The defendant also expressed in the notice of appeal the intent to bring up for review certain orders or rulings made preliminary to the trial.
    
      George Wadsworth, for app’lt; D. B. Richardson, for resp’t.
   Bradley, J.

The parties were intermarried in January 1878. This action was commenced in February 1889. And the plaintiff by his complaint alleges various acts of adultery of the defendant with one Ira II. Myers extending from in the year 1880 into the year 1888. The trial furnished a considerable bulk of testimony. There was no direct evidence of the defendant’s infidelity. The evidence which tended to support that imputation was made up of circumstances related by the witnesses on the part of the plaintiff, and taken as true, was sufficient to warrant the inference and lead to the conclusion that the charge made against her was true, but not conclusive in that respect. The evidence tending in that direction was contradicted by that of Myers and the defendant ; and so far as the facts of "that character related by the plaintiffs witnesses could come within the knowlege of those called on the part of the defendant, they were also contradicted or modified by the latter’s witnesses.

Thus was presented a conflict in the evidence as to the facts material to the main question; and while, as represented by the record, there was opportunity for the the jury, upon the whole evidence to have found that the charge against the defendant of marital unfaithfulness was not sustained, the question in that respect was one of fact for the jun^, and the evidence sufficient to support the verdict against her, Ferguson v. Ferguson, 3 Sandf. 307; Pollock v. Pollock, 71 N. Y. 137. And it was fairly submitted to them by the charge of the trial court. It is urged by the defendant’s counsel that the issues for the trial were not properly settled and for that reason the court erred in permitting the trial to proceed. The statute provides for the application to the court for the purpose ; and then when made the court must cause the issues or questions, to be distinctly and plainly stated on trial. Code G. P. § 970.

When the trial was moved on the part of the plaintiff, the defendant’s council objected to proceeding to the trial for reason that the issues to be tried by the jury were not properly settled. The objection was overruled and exception taken. The ruling of the court had in its support the fact that the attorneys for the parties had some time before made in writing a stipulation that “the issues to be tried by a jury in the above entitled action be stated as follows: Whether said defendant is guilty of the adultery charged in the complaint in this action to have been committed with the corespondent, Ira H. Myers, as therein alleged, and that neither party hereto may apply to the court upon this stipulation and without notice for an order stating and settling the said issues accordingly.” And afterwards upon the motion on the part of the defendant an order was made by the court stating and settling the issues to be tried in accordance with such stipulation. This was the situation when the plaintiff’s counsel moved the action for trial at the circuit. And it was by reason of such stipulation and order that the court permitted the trial to proceed. In this there was no error. It was essential to the trial to have the questions to be tried by the jury stated, Code C. P. § 823; and it was the right of the parties to have them settled for that purpose. Conderman v. Conderman, 44 Hun, 181; 7 St. Rep. 789. This the parties by their attorneys did by their stipulation pursuant to which the order was made, to that effect. They thereby waived the right to have preliminarily to the trial any questions more specifically stated and settled. The trial therefore was properly permitted to proceed, subject to the power of the court to state and submit to the jury any further questions of fact which properly or necessarily was for them to'determine; and this was done after the close of the evidence by submitting to them the question whether five years had elapsed since the discovery of the adultery, whether it was committed without the plaintiff’s consent, and whether he had voluntarily cohabited with the defendant since its discovery by him. This was upon the evidence merely a formal proposition to be disposed of by the verdict in the event the jury found that the main charge was sustained. While the defendant was not as matter of course entitled to a bill of particulars, she in the outset had the right to have the issues express the charges of misconduct on her part with a fair degree of particularity that she might be appraised of those she was required to meet. Wood v. Wood, 2 Paige, 108; DeCarrillo v. Carrillo, 53 Hun, 359 ; 25 St. Rep. 423, 425 ; Strong v. Strong, 1 Abb’s N. S. 237. But since the parties by stipulation and the order thereupon entered, as before mentioned, disposed of this matter, no question arises on this review whether or not the parties would otherwise have been entitled to or obtained a more specific statement of the questions of fact for the j ury. In view of the question for the jury so stated, the defendant’s counsel excepted to the charge of the court that it was not necessary to the result to find that all the charges of adultery alleged in the complaint was sufficient if they found that one or more of them had been sustained. And in answer to the requests of the defendant’s counsel to submit the question whether or not the defendant was guilty of the adulteries charged in the complaint as therein alleged, the court said “you may add to that, either or any of them.” The defendant’s counsel excepted. The question as submitted by the court to the jury in respect to the charge of adultery limited their inquiry to the place of residence of the parties. This certainly was not prejudicial to the defendant, and no exception was taken to it.

The view which the defendant’s counsel sought to urge seems • to have been that the form of the query as stated in the stipulation and preliminary order was such that it was essential to the support of the action that the jury find in the affirmative all the charges of adultery alleged in the complaint, which contained fifty numbered specifications or counts of such charges, or that there should have been a finding of the jury upon each charge contained in the complaint. The latter the court was not requested to have the jury do, and the former may be regarded as not within the reasonable import of the stipulation, as interpreted in view of its purpose in the action. It may be that if so requested the court would have submitted to the jury as many specific questions as to time and place as the defendant may have desired within the allegations of the complaint.

There is no support for the contention that there was a mis-trial. The action was tried upon the merits, and the verdict was such upon the main issues tried by the jury supplemented by the ■further facts found by the court as to properly lead to the judgment directed and entered. It was otherwise in Manning v. Monaghan, 23 N. Y. 539; where there was no sufficient verdict to permit adjudication of a result.

There was in the present case no judgment made for a new trial before the justice there presiding or at the term where the motion for final judgment was made, nor were exceptions directed by such justice to be heard at general term. For that reason the question arises whether the exceptions taken on the trial are here for review.

The statute provides that in actions triable by the court when & trial by jury of specific questions of fact is had an error in admission or exclusion of evidence or in any other ruling, may, in the discretion of the court on review be disregarded if the court is of the opinion that substantial justice does not require the granting of a new trial. And where the judge who presided at the trial neither entertains a motion for a new trial, nor directs exceptions to be heard at the general term, a motion for a new trial can be made only at the term where the motion for final judgment is made, or the remaining issues of fact are tried as the case requires. Code, Civ. Pro. § 1003.

This is somewhat analogous to the practice before the Code when feigned issues were awarded for trial by jury and verdicts taken to inform the conscience of the Chancellor.

The verdict might be adopted or disregarded by him, and a motion for a new trial of the issue was addressed to his discretion A new trial might not be directed merely on the ground of the reception of improper evidence or the rejection of that which should properly have been received if in the view taken by the court the result might not have been otherwise than it was. Apthorpe v. Comstock, 2 Paige, 482; Lansing v. Russell, 2 N.Y. 563.

And in its main features the practice in effect is substantially the same since the Code. Acker v. Leland, 109 N. Y. 5; 14 St. Rep. 23; Randall v. Randall, 114 N. Y. 499; 23 St. Rep. 845.

The cases before cited were in actions in equity in which the trial of issues by the jury is not a matter of right but is wholly within the discretion of the court.

The right trial by jury of the question of the alleged adultery in the present action was a right of the parties preserved to them by the constitution. Conderman v. Conderman, 44 Hun, 181; 7 St. Rep. 789.

And the statute in such case provides the manner in which the issues awarded shall be presented for trial and further, that, “The subsequent proceedings are the same as where questions arising upon the issues are stated for trial by a jury in a case where neither party can as of right require such a trial, except that the finding of the jury upon such issue or question so stated is conclusive in the action unless the verdict is set aside or a new trial is granted,” Code Giv. Pro. § 970. It may be observed that by this statutory provision, with the qualification in respect to the legal effect of the verdict, the practice following it is substantially the same as that relating to the feigned issues tried by jury in other cases.

Such was the rule of practice in suits for divorce before the Code, Mulock v. Mulock, 1 Edw. Ch. 14. And now in such cases a new trial of the issues so awarded will not be granted for other than substantial errors upon the trial. Forest v. Forest, 25 N. Y. 501, 510 ; Vermilyea v. Palmer, 52 Id. 471; Foote v. Beecher, 78 Id. 155, 157.

And as regards the review of trials of such specific issues awarded for trial by jury, preliminary to the final trial, determination and disposition of the other and entire issues by the court, the practice-as it formerly existed in Chancery is substantially preserved and declared by the provisions of the Code before referred to, and with the qualification before mentioned, and that contained in § 1003 of the Code, is the same in all cases where feigned issues are tried. And in such case as the trial is a preliminary one to the final hearing and determination of .the action, which is made by the decision of the court, a motion for a new trial of such feigned issues can in the first instance be made only before the judge who presided at the trial or at the term where the motion for final judgment is made or the remaining issues of fact are tried, unless the judge directs that‘the exceptions be heard at general term, Code Civ. Pro. § 1003. And in case the motion was not so made or directed to be heard the party to whom the verdict, is adverse, is by the practice prescribed in such case, deemed to have acquisced in the verdict upon such issues. Ward v. Warren, 15 Hun, 600; Chapin v. Thompson, 80 N. Y. 275; reversing 18 Hun, 446; 23 Hun, 12, 15; 89 N. Y. 270, 274. As no such motion for a new trial was made or such direction given for it to be heard, the defendant is in no position to raise here as against the verdict of the jury any question upon the rulings in the reception or rejection of evidence at the trial of the issues submitted to them or as to the force or weight of the evidence in support of the verdict.

Nevertheless a careful examination of the evidence and of the exceptions taken by the defendant to the rulings upon the admissibility of evidence on the trial before the jurjq leads to the conclusion that tliere was no error in that respect prejudicial to the defendant. At the time that the issues were moved for trial before the jury the defendant’s counsel upon affidavits moved for a postponement of the trial founded upon the alleged fact that she was in ill health and unable to attend the trial at that time. This motion was addressed to the discretion of the court and was denied. The defendant was present and testified as a witness on the trial. We think there was no such abuse of the discretion of the court in the denial of the motion as to require or justify relief on this review. Borhy v. White & W. Mf'g Co., 34 St Rep. 987.

So further question seems to require the expression of consideration. The j udgment should be affirmed.  