Cross v. Cross

• Decision Date: 17 January 1888
• Parties: CROSS v. CROSS.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 628

15 N.E. 333

CROSS

v.CROSS.¹

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, supreme court, Second department.

This is an action brought by Elizabeth Cross, respondent, to obtain judgment for separation and support from her husband, John Arnold Cross, appellant. Defendant appeals from a judgment of the general term of the supreme court, affirming judgment for separation, with alimony at the rate of $1,200 a year, entered after trial at special term.Geo. C. Reynolds, for respondent.

Benjamin F. Tracy, for appellant.

FINCH, J.

The question of abandonment in this case is very close, and quite open to debate. That a separation occurred, evincing a settled determination of the parties to live apart, is beyond question; but whether the result sprang from an abandonment of the wife by the husband, or of the husband by the wife, is a difficult inquiry, but purely a question of fact. The appellant seeks to avoid that consequence, and open the merits for review in this court, by insisting that, when the plaintiff called the defendant as a witness, she gave him credit as such, and so became bound by his evidence that he did not abandon his wife, and sought in good faith, and patiently, a restoration of their marital relations. But, by calling him as a witness, the plaintiff did not become forced to admit as true every fact to which he testified. While not at liberty to impeach his character for truth, she was at liberty to dispute specific facts, although sworn to by him; and the trial court had the right to confront his statement of his mental conclusion with the facts and circumstances of his conduct, his letters and declarations, and determine from the whole evidence whether he did form a settled determination to abandon his wife. He was both a hostile and a deeply interested witness, and all his testimony was a proper subject of consideration, with freedom to believe, or doubt and reject. This doctrine we have quite recently asserted in Becker v. Koch, 104 N. Y. 394, 10 N. E. Rep. 701. The question there was one of fraudulent intent, and respected the purpose of the witness, and his statement of honesty and innocence was uncontradicted, except by the logic of facts and circumstances, and the force of natural inferences. In like manner, here it was competent to confront the statement of the witness-adverse in interest, hostile in feeling, married to a new wife, and fretted by the old entanglement, and...