278 A.D. 244, Erlich v. Erlich

Citation:278 A.D. 244, 104 N.Y.S.2d 531
Party Name:HENRY ERLICH, Appellant, v. RAYE ERLICH, Respondent.
Case Date:May 15, 1951
Court:New York Supreme Court Appelate Division, First Department
 
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Page 244

278 A.D. 244

104 N.Y.S.2d 531

HENRY ERLICH, Appellant,

v.

RAYE ERLICH, Respondent.

Supreme Court of New York, First Department.

May 15, 1951

APPEAL (1) from a judgment of the Supreme Court in favor of defendant, entered June 14, 1950, in New York County, upon a decision of the court on a trial at Special Term (DI FALCO, J.),

Page 245

and (2) from an order of said court, entered December 6, 1950, which denied a motion by plaintiff (a) to set aside the judgment, (b) for a new trial, and (c) to reopen the case so as to admit additional evidence.

COUNSEL

Mitchell Salem Fisher for appellant.

Frederick W. Scholem (Hyman Goldman and Leo B. Mittelman with him on the brief), for respondent.

Per Curiam.

Husband and wife each seek a decree of separation from the other upon the ground of abandonment. The wife's counterclaim for that relief in this action was withdrawn, but after the husband's complaint was dismissed by the judgment appealed from, she commenced a like action against him. One of her defenses to his action was that she returned to his home on February 18, 1950, intending in good faith to resume her relationship as his wife. The Trial Justice has stated in an opinion that he dismissed the husband's complaint upon that ground, although there is a finding of fact that the wife at no time deserted her husband, nor absented herself from him without intention to return. The good faith of the wife's return to her husband's home on February 18, 1950, has been seriously impugned by voice recordings of intercepted telephone conversations between her and her attorneys and others. From these it might appear that the letter of reconciliation which she wrote to her husband, and her oral communications and conduct toward him, were inspired by her lawyers and were part of the strategy of the lawsuit rather than the reflection of a spontaneous desire for a reconciliation. She testified that it was all her own idea, and denied having known the New Jersey lawyer who had dictated to her over the telephone the letter of reconciliation which she wrote to her husband.

The transcriptions of these telephone conversations are admissible in evidence notwithstanding section 353 of the Civil Practice Act. The following quotation from Richardson on Evidence (7th ed., § 489) is pertinent: 'Where a communication between an attorney and his client, which they...

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