
    Mary A. Dickinson, Resp’t, v. Albert E. Dickinson, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    Divorce—Evidence—Code Crv. Pro., § 831.
    The plaintiff in an action for absolute divorce is incompetent, under S 831 of the Code, to testify to her residence at the time of the acts of adultery charged, and at the time of the commencement of the action.
    
      Appeal from judgment in favor of plaintiff.
    
      &-timson & Williams, for app’lt; Sioddart & Hart, for resp’t.
   Patterson, J.

This judgment must be reversed for error in the admission of testimony. The action was for divorce; the plaintiff suing on an- allegation of adultery on the part of the defendant. It appeared in evidence that the defendant had pro-' cured 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 has 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 New 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 New 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 exception 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. Erkenbrach, 96 N.Y., 456. As to the right to one, it is regulated by the Code of Civil Procedure. When, as in the present case, there is sought a divorce a vinculo, on the grounds of adultery, it is provided by § 1756 of that Code that the plaintiff, when the parties were not both residents of the state when the offense was committed and where they were not married in this state, and 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 New 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 outside of the plaintiff’s own testimony. There were three •other witnesses called on that subject, viz.: Albert S. Dickinson, Henry P. Hu ling and Mary Eoberts, 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 § 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 ana to disprove any charge of adultery against herself. Jurisdictional facts must be proven as 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 Hew 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 Hew York She had sworn in that suit that she lived in Hew Jersey and not in Hew 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 Hew Jersey that conclusion was reached we do not know. ' It may have been a question of credibility ; but that the court in that state found she did not reside there is no reason why on this record we should find 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.

Van Brunt, P. J., and O’Brien, J., concur.  