#### William L. Taylor, Appellant, *v.*Helena O. Taylor, Respondent.

Fourth Department,

January 15, 1908.

Husband .and wife — divorce — admissions in the answer not proof of adultery — husband incompetent to show non-access — proof of second marriage not conclusive.

The adultery, of the defendant in an action for divorce cannot be established by admissions in the answer; otherwise there would be a way open to litigants to avoid the rule that the offense must he clearly proved.

A husband suing for divorce is not competent to show non-access by testifying that his wife left him in 1903 and that he did not see her again until 1905, in which year she returned to this State and a child Was born to her, and he is not entitled to judgment on such proof, although the answer affirmatively alleges that the defendant obtained a divorce from the plaintiff in a foreign State and remarried there, the issue of adultery being raised by a general denial.

No objection to the competency of such testimony by the husband is necessary. Although in such action the defendant'herself proves the foreign divorce and subsequent marriage it is insufficient to show adultery, for proof of *cohabitation*with a second husband, the first husband still living, is necessary to establish sexual intercourse. Proof of the marriage alone is insufficient.

^Kruse and Williams, JJ., dissented.

Appeal by the plaintiff, William L. Taylor, from' a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 5th day of March, *2211907, upon the decision of the court, rendered after a trial at the Onondaga Special Term, dismissing.the complaint upon the merits in an action to obtain an absolute divorce.

*R. R. Tousley*and *John W.*Reynolds, for the appellant.

*Homer Weston*and *Waldo*Weston, for the respondent.

Robson, *J.:*

*When*plaintiff rested- his case on the trial the oral proof before the court was limited to the formal proof given - by plaintiff on his examination as a witness and some vague testimony as to the birth of a child tq defendant in.October or November, 1905. With tMaoral evidence plaintiff seems to have relied in establishing his charge of adultery upon certain admissions in. defendant’s answer, though' on the argument of this appeal, his counsel practically, admits that the motion for a nonsuit should have been granted when made after plaintiff had rested. ■

Defendant’s answer contains two defenses. By the first her marriage with plaintiff is. admitted, as is also the residence in this State of both parties at the time of the marriage, and the birth of' the child, Luther, issue of that marriage.. Then follows a general denial of all other facts alleged in the complaint. The second defense is affirmative, in which she says she left plaintiff on account of cruel and inhuman treatment and failure to properly support. her, “and for acts on his part amounting to principal cause” (what-/ ever that may mean); and went to the State of Texas to reside with friends, having the intention of making that State her home. She then sets out at length the obtaining of a divorce by her in a Texas court, and her marriage w-itli one. Cloud thereafter. She further alleges that she has not cohabited with plaintiff since February 24, 1903. It is clear, therefore, that defendant has put in issue the charge of adultery, and also the further allegation of her pregnancy and birth of a- child to her while separated from her husband, which plaintiff’s complaint contains.

The admissions in the .answer, taken in connection with the fact of the birth of the child in 1905, which plaintiff sought by the oral evidence offered on the trial; to establish, were evidently relied upon by plaintiff, at the time lie rested his case, as establishing the charge *222that defendant committed adultery with Cloud, her Texas husband. I do not think admissions in an, answer in an action for absolute divorce can be regarded as any evidence of the fact that adultery had been committed by defendant, if the adultery charged be clearly denied. If such admissions can be taken as in and.of themselves proof of the principal fact, then a ready way of avoiding the rule that this fact must be clearly proved would be opened to litigants in such actions. It seems that resort to this method of proving any material fact, from which an inference establishing the charge of adultery can be drawn, must necessarily be held not permissible, or the rale in regard to the necessity of actual proof of the fact abandoned. . The result of the adoption of any other course of practice would permit the granting of a divorce on the consent of defendant, which is absolutely prohibited. (General Rules of Practice, rule 76.)

Plaintiff’s evidence in regard to defendant’s leaving him in February, 1903, and that he did not again see her till May or June, 1905, cannot be competent, if any inference of non-access is to be drawn therefrom, from which the further inference of her adultery is to be established, based on the claim that he could not in that case have been the father of the child born in October or November of that year. No objection to the competency of the proof for that purpose was necessary. *(Fanning*v. Fanning, 2 Misc. Rep. 90; 20 N. Y. Supp. 849.)

Therefore on the evidence, as it stood at the time plaintiff rested I do not see how it could be held that a *prima facie*case had been made out. Defendant’s proof and plaintiff’s proof in rebuttal do not aid in that result. This further proof by defendant, so far as it in any way bears .upon this question, is limited td the introduction of the copy of papers, which is practically a copy of the judgment roll in the Texas divorce action, the marriage license and certificate of defendant’s marriage with Cloud and an admission that she swore to her answer, which contained the statement, to which her attention was called. When plaintiff again had the case some further testimony was offered,' and the birth of a child to defendant in the latter part of October or in November, 1905, I think was established by competent proof. The proof of the adultery charged still hinged on the marriage of defendant with Cloud and the birth of this child: *223Defendant seems to have assumed the burden of establishing her marriage with Cloud and for that purpose offered the copy of a marriage license and marriage.certificate. To this plaintiff objected; and I think the objection should have been sustained. But, even if her marriage with Cloud may be deemed to have been established,, either by her admission, or by the marriage certificate, or both taken together, that alone would not establish the charge of adultery. Marriage and *cohabitation*with a second husband, the first husband still living, is conclusive proof of sexual intercourse. *(Hunt*v. Hunt, 72 N. Y. 217; *Clapp*v. *Clapp,*97 Mass. 531.) But I do not know that it has ever been held that proof of a second marriage alone furnishes such proof. • If proof of cohabitation is necessary in establishing this fact, I do not think it is found in the case. There is surely no direct proof of that fact, and if it is to be found from the evidence in the case it is dependent, as an inference, on the fact that a child was born to defendant some seven months after her return to New Y ork and establishing her residence in the same town in which plaintiff lived. Competent proof of non-access of plaintiff during that time does not appear, and no presumption to that effect will be indulged. *(Mayer*v. Davis, 122 App. Div. 393; 106 N. Y. Supp. 1041; *Van Aernam*v. *Van*Aernam, 1 Barb. Ch. 375; *Cross*v. *Cross,*3 Paige, 139.)

All concurred, except.Williams and Kruse, JJ., who dissented.

Judgment affirmed, with costs.