Moller v. Moller

• Citation: 115 N.Y. 466,22 N.E. 169
• Parties: MOLLER v. MOLLER.
• Decision Date: 08 October 1889
• Court: New York Court of Appeals

115 N.Y. 466

22 N.E. 169

MOLLER

v.MOLLER.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, first department.

This action was commenced December 14, 1885, by the plaintiff to obtain a divorce from the defendant, her husband, on the ground of adultery. The answer was served February 6, 1886, and the action was referred to a referee on the 29th day of April, 1886, to hear and determine the issues. The complaint alleges the marriage of the parties in January, 1883; that the defendant committed adultery with some woman unknown to the plaintiff at No. 48 West Twenty-Sixth street, in the city of New York, on the 13th and 28th days of November, 1885; and that he also committed adultery with a woman unknown to the plaintiff at No. 33 East Twenty-Seventh street, on the 1st day of December, 1885. The answer denies the allegations of adultery. The trial of the action commenced before the referee on the 15th day of May, 1886, and the plaintiff gave evidence tending to sustain all the allegations of adultery made in the complaint. The referee made his report on the 6th day of December, 1886, in which he found that the defendant had committed adultery with Lotta Forbes on the 28th day of November, 1885, at No. 48 West Twenty-Sixth street, and he made no findings in reference to the other charges of adultery contained in the complaint. Judgment of divorce in accordance with the report, and granting to the plaintiff the custody of the child of the marriage, and costs, were entered at the special term. The defendant then appealed to the general term, which reversed the judgment, and ordered a new trial before another referee. The plaintiff then brought this appeal.

D. C. Briggs, for appellant.

Chas. A. Wilson, for respondent.

EARL, J., ( after stating the facts as above.)

We agree with the learned judges of the general term in their low estimate of the value in divorce cases of the evidence of prostitutes and private detectives. The courts have come to regard the uncorroborated evidence of such witnesses as insufficient to break the bonds of matrimony. Sopwith v. Sopwith, 4 Swab. & T. 246; Ginger v. Ginger, L. R. 1 Prob. & Div. 37; Banta v. Banta, 3 Edw. Ch. 295;Turney v. Turney, 4 Edw. Ch. 566; Platt v. Platt, 5 Daly, 295; Anon., 5 Rob. (N. Y.) 611. The consequences which follow a judgment of divorce are so serious and momentous that such a judgment should not be granted without the evidence which furnishes the basis therefor is, after very careful scrutiny, satisfactory, and such as can command the confidence of a careful, prudent, and cautious judge. But the illicit amours of faithless husbands and wives are usually clandestine, and their wicked paths are hidden from public observation, and hence courts must not be duped, and they must take such evidence as the nature of the case permits,-circumstantial, direct, or positive,-and bringing to bear upon it the experiences and observations of life, and, thus weighing it with prudence and care, give effect to its just preponderance. Applying these rules, we are constrained to differ from the learned general term as to the force of the evidence in this case. All the facts must be grouped around the central figure, Lotta Forbes, with whom the defendant has been found to have committed adultery. She is an acknowledged prostitute, and testified that the defendant committed adultery with her, besides other times, in the evening of the 28th day of November, 1885, in the third-story front room of No. 48 West Twenty-Sixth street, after which he accompanied her to Koster & Bial's place of amusement. It is not needful to criticise her evidence, or to call particular attention to any portion thereof. It is sufficient to say that, if uncorroborated, she would be unworthy of credit.

George S. Chase, a private detective, employed on behalf of the plaintiff to watch the conduct and movements of the defendant, testified that in the evening of November 28th he saw the defendant enter the house No. 48; that he watched from the opposite side of the street, and saw him, soon after entering the house, appear with a woman, whom he identified upon the trial as Lotta Forbes, in the third-story front room, where she lit the light and pulled down the window shades; that he remained there about three-quarters of an hour, and then came out of the house, and accompanied her to Koster & Bial's. There is much in the character, position, and evidence of Chase to discredit him, and, if Lotta Forbes' evidence was corroborated only by his, the case for the plaintiff would still, in our opinion, lack that strength which would justify a judgment in her favor. But there is much corroboration of the evidence of these two witnesses, to which we will now call attention. William S. Chase, a brother of the detective, on the 28th day of November met him near Twenty-Sixth street, and at his request went with him to No. 48, and there saw the defendant enter that house, appear in the third-story front room with Lotta Forbes, and, after remaining there about half an hour, leave with her and go to Koster & Bial's, as testified to by the detective. This witness was in no way impeached, and no doubt whatever is cast upon his story except by the singular coincidence that he met his brother without any prior appointment, at the particular time when he could be a convenient support to him in the evidence which he was expected to furnish. Alice Brooks, a colored washerwoman, testified that in the latter part of November, 1885, she saw the defendant in the third-story front room of No. 48, then unquestionably occupied by Lotta Forbes, and that he gave a woman who was then with him $3.50 to pay her washing bill, and that she saw his photograph on the mantlepiece in the same room on the next day. It is true that she says that woman's name was Annie De Forest, but the description which she gives of her corresponds with that of Lotta Forbes, and no one by the name of Annie De Forest occupied that room, or was in the house at that time. Alice Jones, who was a servant in No. 48 during the months of October, November, and December, 1885, testified that the defendant called there once, and inquired at the door for Lotta Forbes. Mrs. Swinyard, who was mistress of the house No. 48, testified, as a witness for the defendant, that Lotta Forbes occupied the front room in the third story from October 12 to December 12, 1885. The proof is abundant that the house No. 48, if not a house of common prostitution, bore such a strong resemblance to one that the difference was scarcely noticeable. While there may have been some respectable people living in the house, prostitutes were harbored there, who plied their vocation in the house with the knowledge of the mistress thereof.

If we should stop here, would not the story of Lotta Forbes be sufficiently corroborated? It is unquestioned that she at the time mentioned occupied the particular room, and that the defendant was a visitor at that house of bad repute. How is it possible that the plaintiff, said to be the daughter of a clergyman, was able to suborn so many witnesses, and engage them in a criminal conspiracy to furnish the perjured evidence which would convict the defendant of adultery? It is rarely that more evidence can be furnished to establish the charge of adultery. The corroboration gives such strength and weight to the evidence of the prostitute and detective as to induce belief in its truth. But there is still more important corroboration,-that which it seems to us leaves no reasonable doubt that the referee reached the correct conclusion. Before the action was referred, and before the plaintiff, so far as appears, had any knowledge whatsoever of Lotta Forbes, the defendant had, by inquiring, found that she was in New Orleans living with a man by the name of Withers as his mistress, and he addressed her the following letter, underscored as the same now appears: ...