Hurtzig v. Hurtzig

• Citation: 44 N.J.B. 329,15 A. 537
• Parties: HURTZIG v. HURTZIG.
• Decision Date: 18 October 1888
• Court: New Jersey Court of Chancery

15 A. 537

44 N.J.B. 329

HURTZIG

v. HURTZIG.

Court of Chancery of New Jersey.

October 18, 1888.

(Syllabus by the Court.)

On final hearing, on petition.

John C. Besson, for petitioner. Wm. S. Stuhr, for defendant.

MCGILL, Ch. The petition is filed by the husband against the wife for divorce upon the ground of adultery. There is no direct evidence of the fact of adultery, but it is claimed that the circumstances proved sustain the charge. It is not requisite that there shall be direct proof of this crime; for if that were the rule, there is not one case in a hundred where such proof would be attainable. The crime is almost invariably clandestine, and committed only when every precaution is taken to preclude the possibility of its discovery. Familiar indicia of it are loss of affection that is due to, and was bestowed upon, its legitimate object, and the bestowal of affection upon an unlawful object; stolen interviews; private correspondence; amorous and passionate utterance; personal freedom; indecent familiarity; compromising situations, and the like. There may also be slight, delicate, and indefinable circumstances, proximate to the adultery, and peculiar to a given case, that, though less prominent as indicia, are nevertheless powerful factors in producing conviction of guilt. It is often difficult to discriminate between that which points to the crime of adultery and that which indicates nothing more than imprudence, indiscretion, and folly. It must be borne in mind that the burden of proof is upon him who asserts the adultery, and that that burden must be clearly sustained. It has been held that, where it is established that the defendant and her particeps criminis had the will and the opportunity to commit the crime, the court will infer guilt. Berckmans v. Berckmans, 16 N. J. Eq. 143; Black v. Black, 30 N. J. Eq. 230; 2 Bish. Mar. & Div. § 619, The main difficulty in the application of this rule is in the determination, from circumstances, of the condition of the minds of the defendant and her particeps criminis. This suggestion shows the necessity, in such determination, of the application of the precautionary test, that to establish adultery the circumstances must be such as to lead the guarded discretion of a reasonable and just man to the conclusion of guilt. The judgment must not be rash and intemperate, moving upon appearances that are equally capable of two interpretations. Loveden v. Loveden, 2 Hagg. Const. 3; Day v. Day, 4 N. J. Eq. 444; Berckmans v. Berckmans, 16 N. J. Eq. 140; Culver v. Culver, 38 N. J. Eq. 165. If the circumstances, taken both singly and together, reasonably admit of two interpretations, that interpretation which favors innocence should be adopted. A careful examination of the evidence in this case satisfies me that the following facts are established:

The petitioner and the defendant were married in Jersey City, in October, 1876, and thereafter took up their residence in the city of Hoboken. They have had five children, three of whom are now living,—Ernst, who was born in April, 1880; Ida, who was born in October, 1881; and Elsie, who was born in October, 1882. The petitioner is a dealer in lumber, and during the period in which it is alleged the adultery was committed was frequently absent from home for weeks and months at a time, and, when not at a distance, was during that period usually occupied at his place of business, in New York city, from early morning until late in the evening, George Biese, who is alleged to be the defendant's paramour, is a music teacher, married, and a resident of Hoboken. The petitioner and the defendant formed his acquaintance at a singing society of which he was the leader, and to which they all three belonged. Biese and his wife afterwards became the friends, and frequently the guests, of Mr. and Mrs. Hurtzig. In 1886 the petitioner engaged Biese to give Mrs. Hurtzig lessons in music, and shortly after the commencement of those lessons the train of circumstances we have to consider began. Not long after the commencement of the lessons, an intimacy sprang up between the teacher and pupil. He at first joined her in her daily walks, alone, or with her children, and later returned with her to her home, and partook of her hospitalities. It soon became evident that he had gained her esteem, and then her affections. Their meetings became more and more frequent, and soon attracted so much attention that the tongue of scandal was set in motion. In this posture of affairs the petitioner returned from a visit to the south, and was apprised of the comments that were made upon the conduct of his wife and Biese. He remonstrated with them without avail. His suggestion to his wife that her good name would suffer from the prolongation of the intimacy, only irritated her to anger. She seems to be of a stronger and more determined character than her husband; and although she assured him that her intimacy with Biese was innocent, she refused to terminate it. The effect of his interference was merely to inaugurate a course of secrecy and duplicity that resulted in binding the suspected persons more intimately together. The walks and visits thereafter became more frequent and prolonged. On the 30th of July, 1886, the defendant and Biese made a false excuse to the Hurtzig servants, and left the house quite early in the morning, and remained away until after 9 o'clock at night. When they returned they were met at the door by the petitioner, who had unexpectedly come home from the south. To him they reiterated the falsehood they had told the servants,—that they had visited a friend, a Mrs. Mischke, at Union Hill, three miles away. Early the next morning the defendant visited Mrs. Mischke, and begged her to support them in their deceit. Although pressed to explain their whereabouts and conduct on that day, both Biese and the defendant fail to do so. They claim forgetfulness, but the vividness of their recollection of the unexpected meeting with the petitioner upon their return satisfies me that this claim is but a shallow pretense. The evidence shows that Biese visited the defendant at her home, not only in the day, but also at night, and remained with her alone for hours at a time; and that upon several occasions he was in New York city with her for hours. On the 9th of April, 1887, he was in her house from 9 o'clock in the morning until nearly 5 o'clock in the afternoon; and on the 14th of the same month, his visit extended from 11:30 A. M. to 4:30 P. M. On the 8th of the next month he walked with her in the afternoon, and, returning home with her, remained in her house until after 2 o'clock in the next morning. On each of these times the petitioner was away from home. These are, perhaps, the most pronounced of the scores of occasions when the defendant and Biese were proved to have been together. No excuse that accords with decency or propriety is given for such visits. The servants of the Hurtzig household are mainly relied upon to explain how the time of such visits to the Hurtzig house was occupied. From their testimony, corroborated by admissions of the defendant, and evidence given by Biese, I am satisfied that it was spent in eating and drinking, and in long private interviews. Biese speaks of his favorite dish being prepared for him on several occasions, and the servants mentioned the fact that at times eight and ten bottles of beer would be drank during a single visit. It is also in evidence that at the visits wine as well as beer would be consumed in large quantities, and that the defendant and Biese used to drink alone, together. The private interviews were usually in the reception room. The doors of this room would be kept closed, and at night the lights would be turned down. The interviews would last for hours, and the defendant frequently came from them with her hair in disorder. While visiting in this way, Biese did not hesitate to use the water-closets of the house; at first, one in the basement, and, after a time, one adjoining the bedroom of Mrs. Hurtzig, to which he obtained access by passing through that bedroom. It is shown that the eating and drinking were not confined to the visits to the defendant at her home, but that during their walks the defendant and Biese would often stop at saloons and hotels, and eat and drink together. Upon one occasion Fritz Hurtzig, a nephew of the petitioner, was sent from the petitioner's place of business to the defendant, with money for household purposes. He reached his uncle's house between 2 and 3 o'clock in the afternoon, and found Biese and the defendant together in the reception room. When he entered, Biese had evidently been drinking, and was somewhat intoxicated. After a short time he asked the defendant to bring some wine, and she promptly brought it, and...