Delaney v. Delaney

• Decision Date: 26 November 1906
• Citation: 65 A. 217,71 N.J.E. 246
• Parties: DELANEY v. DELANEY.
• Court: New Jersey Supreme Court

65 A. 217

71 N.J.E. 246

DELANEY

v. DELANEY.

Court of Errors and Appeals of New Jersey.

Nov. 26, 1906.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by James G. Delaney against Hettie Cary Mills Delaney for divorce. Decree (61 Atl. 266) for complainant, and defendant appeals. Reversed and remanded, with instructions.

Thomas S. Henry, for appellant. Charles M. Meyers and Edward M. Colis, for respondent

FORT, J. This is a suit for divorce on the ground of adultery. The court of chancery found the facts to justify the conclusion that the defendant was guilty, and granted the decree prayed for. Several of the judges in this court were unable to reach that result, but we think that, even conceding the act of adultery alleged to have been proven, still the decree should not have been made in this case granting to the petitioner the divorce prayed for.

The petitioner and the defendant were married on July 4, 1900, at Vancouver, British Columbia. They lived together as husband and wife until January 17, 1905, which was two days after the alleged adulterous act of the defendant There is no proof of any improper association with other men after the marriage of the defendant to the petitioner up to the 15th day of January, 1905, when it is alleged the defendant was guilty of the adultery for which the decree was made. In all the proof there is shown but one single instance of the absence of the defendant from the home of the petitioner, either day or night, which even he alleges to have been suspicious. This single occurrence was upon the evening of Thursday, January 13, 1905. The petitioner informed his wife he might be compelled to go on a trip, and took his bag, apparently prepared for that purpose. He returned home in the evening, not having gone as he anticipated, and found his wife absent, and she did not return until about midnight. She had in the afternoon gone to New York, as she says, to purchase a few articles for her husband and herself, and had, after making the purchases, gone to O'Neill's Oyster House in that city. While there she called up by telephone Miss Elizabeth R. Kelly, an acquaintance, and requested her to come to the restaurant, which she did a little before 8 o'clock. She tried to persuade Miss Kelly to go home with her, and Miss Kelly, either at defendant's suggestion or on her own motion, called up Mr. John C. Fawcett, a friend of Miss Kelly, and requested him to come to meet them. He lived in Brooklyn, and did not arrive until about 10 o'clock. It was too late at that time for Miss Kelly, as she thought, to go to Newark, so they sat a few minutes and then went to the ferry of the Delaware, Lackawanna & Western Railroad with defendant, coming over to the Hoboken side, and left her at the train to go to Newark, and they returned to New York to their respective homes. Both Miss Kelly and Mr. Fawcett have been called, and testified. Their evidence is clear and frank, and there is nothing to suggest that they are not persons of excellent character and entirely worthy of belief. It may have been indiscreet for the defendant to do as she did, but there is nothing in the incident to indicate any wrongdoing. When she arrived home that night, the petitioner had retired and fixed the door so that her night key would not open it. She was unable to enter her home. The petitioner appeared finally at the door, and refused her admission. He dressed and came out, and, as he says, refused her entrance to his home, and started with her to take her to the Continental Hotel. By both his evidence and hers, they went out of the apartment upon the public street and walked and talked for some time (probably for an hour), but finally came back to the apartment and went in; each going to their respective rooms. The petitioner declares that the defendant was intoxicated, and that he had to carry her upstairs; whereas her companions of that night declare she was not. He also testifies that, while upon the street with his wife, she admitted she had been out with Fawcett and that she had had intercourse with him. The language in which the petitioner tells the story which he alleges his wife told him is so profane and vulgar that it is not quoted here. It seems impossible to give credence to it, but he says it occurred, and that he was thus led to believe, in fact, was told by his wife, that she had been guilty of adultery. The defendant did not arise the next morning before her husband left He returned to the house between 1 and 2 o'clock in the afternoon, and brought with him Aubery Lockett, an employé of the Lambert Hoisting Engine Company, with whom the petitioner was also employed. He had known Lockett for some years. They were undoubtedly friends. When he thus came home with Lockett, the defendant was still in bed. Lockett was a stranger to the defendant. He says he had seen her once some years before, when with the petitioner at his home. The defendant denies ever seeing him before. The petitioner took Lockett into his wife's bedroom and introduced him to her, by his own admission, in this way: "Lockett, this is the dam whore that bears my name, Mrs. Delaney." And he accused her of being out the night before with Fawcett, and says she replied: "If she was, he was a gentleman and she liked him better than she did him, the big old slob." This is the account of the introduction given by Lockett. The petitioner and Lockett remained, Lockett says, in the defendant's bedroom for 15 minutes, and drank whisky there, and for some part of that time the petitioner went out of the room and left Lockett there alone with the defendant it also appears that, while thus in the room, the petitioner endeavored to get his wife to drink of the whisky which he and Lockett were drinking, which she refused to do. The petitioner and Lockett then left the house and went to New York. While there they drank at various places, and returned to Newark in the early evening, stopping in Newark at several drinking places, and also drinking there. They were drinking cocktails and whisky, and were evidently quite under the influence of liquor. The petitioner states that they went to New York on business, but that they failed to find, on this afternoon, the person whom they were seeking.

About 9 o'clock in the evening they returned to the apartments of the petitioner, and went into the parlor and also into Mrs. Delaney's room, she being still in bed, and they remained in there for some 15 minutes. During all this time they were drinking. Then, after that, they retired. About 4 o'clock the next morning, the petitioner wakened Lockett and had him get up and dress and go out to Murray's saloon in Newark, where they again drank several cocktails. Returning home about 6:30 a. m., they found the maid at the door, and opened it and let her in. Thereupon each of them went to their respective rooms and laid down upon the bed, as we think, without undressing other than possibly the removal of their coats. The defendant arose and dressed after the maid came in, and moved about the house, giving orders, and undoubtedly, under the proof, went to the room in which Lockett was at least twice, when the maid was with her, and at one time went into the room and pulled down the window shades and came out and closed the door. These two instances are testified to by the maid, as to the truthfulness of whose testimony there appears to be no reason for question. Lockett, the maid said, appeared to be asleep, at least he did not give any indication that he was awake. While these two incidents were occurring, the defendant was in her street dress. She subsequently disrobed and went to her own bed, claiming that she was ill and felt bad from the treatment which her husband had inflicted upon her, as she alleges, on the previous Thursday night when she returned from New York as above stated. The room which the defendant occupied was a room just off the parlor, and the room which Lockett occupied was between the parlor and the kitchen, the door of the room which Lockett occupied being not more than 10 or 12 feet from the entrance to the kitchen. The maid testifies that she was in the kitchen during the whole time. The petitioner says that he again arose about 8:30 o'clock a. m., and went to the room of Lockett, and there found Mrs. Delaney in the room with her knee upon the bed in which Lockett was lying, and alleges that Lockett was entirely disrobed, and that the defendant was in her nightdress. He then states that he addressed her in this way: "You damned whore, you are even seducing my friend." And that he dragged her from the room into her own room, and that there was quite a scene and quite a scuffle. The maid testifies that she heard nothing of this, and, so far as she is aware, nothing of the kind occurred, although she was within easy hearing distance of the scene, and the kitchen door was open, and the petitioner would have been compelled to pass the door in going to Lockett's room. Lockett testifies that the petitioner said to him at the time of the occurrence: "Lockett, I don't blame you. Get up and dress yourself, and come on with me to New York. Business is business. I don't care. I don't blame you." Lockett testifies to what may be deemed a statement that he had had intercourse with the defendant

It appears, further, that Lockett did not then get up, nor did the petitioner (who went again to his own room), because the maid testifies that she served the petitioner and Lockett with breakfast on that morning at about half past 10, and that they went out together, and admittedly they went to New York. There was no word of condemnation or criticism or complaint on the part of the petitioner toward Lockett at the occurrence which he said took place, under the circumstances just described. When they returned from New York that night where they were together all day, they returned together. They had been drinking during the day with customers,...