#### Leslie H. Helmes, Plaintiff, *v.*Urena C. Helmes, Defendant.

(Supreme Court, Ulster Special Term,

June, 1898.)

Absolute divorce — Procurement and connivance of the husband.

A husband, desiring aij absolute divorce from his wife who had separated from him, employed certain private detectives to procure evidence. In pursuance of a plan to which the husband assented, one of the detectives who had, by false statements,' succeeded in becoming acquainted with the wife, induced her to go with him by a night boat from New York to Boston to see his mother, although, in fact, ‘his mother was dead. The matter was so arranged that the confederates saw the wife enter a stateroom with the detective and, upon her return trip from Boston, saw them leave a stateroom together. On the second day thereafter the husband brought bjis action predicating it on adultery *126with the detective, who was given a false name, the wife answered, denying adultery, but the detective later succeeded in persuading her to withdraw her answer and the judgment proceeded by default. Held, that the whole scheme was a fraud upon the court; that the statement of ¿the husband’s verified complaint and-his testimony on the trial that he had not procured, connived at, been privy or consented to his wife’s adultery, was false, and that the decree in his' favor must be vacated.

Motion'to vacate a decree of divorce and to relieve the defendant from her stipulation, withdrawing her answer, and for an order that her default be opened and that the issues be tried. *

George Addington, for motion.

Sanford & Sanford, opposed.

Clearwater, J.

The plaintiff and defendant were married at Gatskill on the 18th of January, 1883. They lived together at Albany from that time until October, 1895, when they separated, the defendant claims because of the brutal conduct of her husband and his adultery. They have one child, a girl, Olive, thirteen years of age,, who lives with her mother. By the articles of' separation the plaintiff paid to his wife"$60 per month for' the support of herself and child. Early in 1897 the plaintiff hired David Klugman, who described himself as “ a private defective,” to furnish evidence upon which he could obtain a divorce from his wife upon the ground of adultery. Klugman hired George D- Emerson, am other so-called private detective of the city of New York, to aid him. The latter went to Albany, and was introduced by Klugman to the plaintiff at his place óf business. Emerson, who had never before heayd of the defendant or her family, was- told that she lived with her father, Joseph Keeler, at Gatskill; that her brother Newton, to whom her father was devotedly attached, had,died at Gatskill in September, 1873, twenty-four years of age.

íhat his death was a great shock to his father, who, after the lapse of more than twenty years, still talked of his son and of his deep affection for him. That Newton was a skillful penman and accomplished bookkeeper, attainments óf which his father was very proud, and of which he was never weary of speaking. Emerson returned to New York. He lived in Forty-ninth street, but securing some of the note-paper of one of the Broadway hotels, *127wrote the following letter, .which he addressed to the man who he knew had been dead for twenty-four years:

“ Hotel Imperial, Broadway and 22nd Street, H. Y.

“ Hew York, January 22d, ’97.

“Mr. Hewton D. Keeler:

• /

“ I hope you have not forgotten me. . It is more than twenty years since I was in Oatskill. The other day I was looking over some very old papers , and among them I found your card. It brought to my mind my boyho'od days; the summer when my mother and I were at a hotel'in 0.; the Sunday we attended the Methodist church, and you so kin,dly invited me into your class in Sunday school.

“ Ho doubt you are married; have a good wife and children (?) now. I hope so. I have not married. I was engaged to an estimable young lady who died suddenly.

“ I am interested in the shoe business. Manufacturing. I hope if you ever come- to H. Y. city, you will not fail to visit me. I shall be grateful if you come and accept of a pair of shoes in return for your kindness to me in 0.

“ Please let me hear from you.

“ Cordially yours,

“ Geobqe D. Emees on.”

• He then, for the first time in his life, visited Oatskill, went to the post-office, stated to the- postmaster that he had Teamed since writing the letter that Hewton Keeler was dead, got it, and on the Sunday following, from a hotel at Oatskill wrote this letter to- the defendant’s father:

“ Hotel Irving, Oatskill, Hew York.

“Sunday, Feby. 7, ’97.

“Mr. Keeler: , z

“ Dear Sir.— I was called to Hudson on business yesterday and on my return stopped here! With much regret I learned that Hewtooi died many years ago. I went to P. O. and explained to them that I had written a letter to him, and, of course, never would be called for. They gave it to me, and I send it inclosed to you that you may know what this all means. I shall be pleased to meet you at the Methodist church this morning, and invite you to *128take dinner with me here between 1 and 2 o’clock,- as I shall have to return to N. Y. this p. m. I wish to talk with you. Hope you can read this. I only -wish I could-write as Newton used to when I met him.

“ If you cannot come will you kindly let me know.

*“*Cordially .yours,

“ (xeo. D. Emerson.”'

These letters he sent to the residence of Mr. Keeler, who shortly after receiving them, went to- the Methodist church, and asked the usher if anyone had inquired for ]jim. The usher designated Emerson, who was seated in a pew, as having done so. Mr. Keeler took a seat beside him, and .both* remained to the service, at the close of which the sacrament of the Lord’s supper was administered. Mr. Keeler, being a. communicant, went to the altar to partake of . the sácrament, and was followed by Emersqn, who knelt at his - side and partook of it with him. He then invited Emerson to his house, introduced him to his daughter, the defendant,' showed him Néwton’s portrait, and asked him if he recognized it. Emerson with moistened .eyes and a sob said that he did. He was then shown the business account-books kept by Newton during his life; and praised the distinctness of Newton’s penmanship, to which he had referred in his letter. Returning to. New York he wrote, expressing his. thanks for the courtedus treatment he had received, " and inviting Mr. Keeler and his family to call on him When they . visited that city. He learned,' among other things,, that the defendant meant to attend, the inauguration of the President on .the 4th of March. As she was passing through New York, on her way to Washington, he called, upon her, and persuaded her to abandon her trip and to go with him to Boston to see his mother (who, in fact, was dead), and it was arranged they should.go on the .steamer Pilgrim, on the afternoon of March 6th. The plaintiff was immediately informed and went to New York,' met Emerson with four confederates at a law office near'the corner of Franklin and Centre streets, and in the plaintiff’s presence it was arranged that on the afternoon of March 6th, Emerson should go to the hotel in Forty-second street, at which the defendant was staying, go with her by street car to' the wharf of' the steamer Pilgrim at the foot of Murray street, and enter a stateroom with her. That th§ four com federates should he. at the hotel to see them leave, and should then go by the elevated railroad to the steamer, reaching there béfore *129they arrived, and see them enter a stateroom together. This arrangement was carried out. On the following morning the plaintiff procured a written statement from these persons of what they had seen, and upon one of them saying to him that'he had got his wife “ dead to rights,” the plaintiff said that would be “ the end of her.” Emerson told his confederates that the defendant and he would • return to Hew York with the Pilgrim on the morning of March 9th, and arranged with them to be at the steamer to see them-leave a stateroom together. They were there.

On the next day but one, this action was begun by the service of a summons and verified complaint,, the charge of adultery being predicated upon the defendant’s relations with Emerson, under the name of Gaylor, which it was arranged he should assume, and which he did assume. The plaintiff affirmatively alleged that the adultery was committed without his consent, connivance, privity or procurement, and that he was ignorant of “ Gaylor’s ” true name. The defendant answered, denying the allegations of adultery, and alleging that on the 5th day of August, 1896, and at various times and places, the plaintiff had committed adultery with two women, whom she named, and demanded as affirmative relief, that a decree of divorce *a vinculo*be granted to her, and that she have the care, custody and control of her child, with suitable provision for their permanent support.

After the action was begun, the plaintiff wrote to Emerson, inviting him to dine with him in Hew York, an invitation which he accepted, and the plaintiff invited some of his friends to dine with, and meet the man he alleges to be the seducer of his wife.

■ Immediately after she was sued, the defendant tried to find Emerson, but for a long time was unable to do so. She wrote him,, and received letters in reply postmarked at Boston, expressing his sorrow at the bringing of the suit, and his sympathy for her parents.. When she did find him, he said his mother had been sick in Boston, and that he had been in that city. He urged her not to defend the action, but to permit her husband to obtain his divorce without opposition, and subsequently wrote her to the same effect saying:

“ My mother has come to Hew York to visit me. I am glad to-see -her, always before, now more than ever.. She has been talking to me to-day. Does not condemn you in the least nor me. I have-told her how much you and Olive are to me, and what nice people are your father and mother in the home and in the church.

*130*“*Now, dear, what I may say may not please yóu. I wish you would write to E. (her then counsel), and say you' wish your case ■ brought before a referee. Then there will be no- scandal. Now, dear, you have seen enough of me to know that my not seeing you ■ does not mean that I shall care or even wish to see any other,woman.' Do what I ask, dear.' Beaten or victorious, Olive, you and I shall go. on to Boston where we will be as welcome as one would • wish.” ' r,

A few days later she. received another .letter - from him saying:

• “ I hate to say it, but it looks to me as if F. was trying to advertise himself. I would not trust him in my sight or out of it. He is just trying to get- monéy. Do not worry about my mother. She will admire you as she does others whom she feels are good to- me.” Yielding- to his urgent solicitation, and -against the -advice and repeated protests of her counsel, she withdrew her answer and filed the following stipulation; '

SUPREME COURT — ALBANY COUNTY.

LESLIE H. HELMES, Plaintiff, ] against (

TJKENA C. HELMES, Defendant ¡

It is hereby stipulated and agreed that the defendant- will with- - , draw her answer and amended answer to the complaint herein, and that the plaintiff will not have inserted in the judgment or decree ' herein any provision awarding him the custody of Olive Mary Helmes, the issue of the- marriage of the parties hereto, and will not' hereafter in this- action, or in any other action or proceeding, claim the custody of the said child' or dispute the defendant’s right thereto. That no action will ever be taken by the -defendant to obtain support or maintenance for the- said child from the plaintiff.

Sanford *&*Sanford,

*Attorneys for Plaintiff.*.

- - Friend,. House ■& G-rossman,

*Attorneys, for Defendant.*

. The answer having been withdrawn, and the defendant being-thus in default, the case was. brought on- before-Mr; Justice Chester, at the Albany Special Term of the 15th of June, 1897, and upon *131the testimony of Emerson’s confederates as to what they had seen, the testimony of the plaintiff that he neither procured, connived at, was privy to Or consented to the adultery of his wife, and her stipulation withdrawing her answer, the decree of divorce which it is now sought to set aside was granted. Judge Chester was not of course aware of the ■ corrupt methods which the plaintiff had pursued, for had he been, the decree would never have been signed.

Immediately upon the divorce being granted, Emerson ceased to write to the defendant or to see her. It finally dawned upon her that she was- the victim of a conspiracy, and after much time and effort, she found Emerson, who cynically told her that he had no mother, that she had long been dead, that he had not been in Boston, but had had his letters to her sent to Boston and mailed to her from that city, and that he had been paid something less than $200 for aiding her husband to get his divorce.

'Our statute prohibits the granting of a divorce where the offense was committed by the procurement or with the connivance of the husband, on the principle well expressed in the ancient maxim of the common law *volenti non fit*injuria, and also on the fundamental principle that where no wrong is done, no redress is due. The statute is simply an adoption and re-enactment of the rules, adopted and applied by the Ecclesiastical Courts in England, the practice and decisions of which, so far as applicable, have been adopted and followed by this court in this state. The rule in England, indeed, goes further, and holds that a husband who connives at or assents to adultery by his wife with one person, shall be deemed ds assenting to it with others, and will not be entitled to a divorce for a subsequent act of adultery with a different person. Sir William Scott (afterwards Lord Stowell), when Dean of Arches, in Timmings v. Timmings, 3 Hagg. Ecc. 76; Lovering v. Lovering, 3 Hagg. Ecc., 85; Dr. Lushington in Stone v. Stone, 1 Robts. Ecc. 99.

Marriage is not a mere personal relation, but a public institution, on the purity and integrity of which, the welfare of society depends. For this reason, it can only be dissolved on public grounds, never to suit the whims, caprice or mere wishes of individuals; and it is the duty of the court to see that fraud and falsehood do not accomplish that which the law forbids.

Procurement or connivance destroys all claim to legal redress, for it would be absurd to permit a man to be relieved from the result of an injury which he was chiefly instrumental in causing *132himself. He must approach the altar of justice with pure hands if he expects redress from the courts because of the impurity of his- wife.' This .man has forfeited all right to legal relief from his marital obligations because of the unchastity of his wife by his' anxiety to have her polluted, for however different and salutary may be the rule in ethics, in law it is as full and complete -a legal defense- toi the wife, as -the most unequivocal contradiction of-fact can be, that her husband was the author and accomplice of her offense, or that he deliberately pursued a train of conduct which led-to her guilt, and which he foresaw and intended would lead to it, ’and for a man to lay, as this plaintiff did, a trap to induce his wife to commit adultery and be caught, is connivance and procurement of the most infamous sort.

I have' examined with care the elaborate brief of the plaintiff’s - counsel. It is not, however, worth while tó spend time in the citation of authorities or the discussion of precedents as- to the-power of the court to grant this motion. The Supreme Court, independently of any authority conferred by the Code or by statute, has the power to amend or vacate its own judgments, and its absolute power to annul any judgment or decree for fraud practiced in the procurement and concoction of the judgment itself, is undoubted, and inheres in the very constitution of the court, Any attempted limitation upon this power would not for a moment be tolerated, for it is inconceivable that the highest court of-original jurisdiction in a great commonwealth should permit its action to be paralyzed by rules which would result in a reversal of its functions, and convert an august tribunal for the administration of justice, into an instrument of fraud and oppression.

Any fact which clearly proves it to-be against good conscience to permit a judgment to be executed, and of which the injured party was prevented by. the fraud of his adversary unmixed with fault or negligence of his own, from availing himself, will justify an application to the court for relief.

The facts to which I have referred, if not practically undis-? puted, are abundantly established. Heither a fuller statement nor an elaborate discussion' of all the nauseating details of .the case, is here necessary, as the whole matter must be the subject of a more formal investigation.

It would in truth be difficult to present a stronger case for the' intervention of the court. To permit so iniquitous a conspiracy to finally succeed would ‘be monstrous, for it is evident that the *133court has been deceived and imposed upon by methods not only base, but hideously foul. The dignity of a judicial proceeding has been degraded, and the most solemn and sacred' rite ,of the Christian faith blasphemously defiled, in the revolting effort to debauch this woman for the sole purpose of freeing this man from his marriage vow.

The court would be derelict in its duty should it hestitate to act'with drastic completeness.

The decree is vacated, the default opened, the stipulation set aside, the defendant, if it be thought necessary, may move to amend her answer so as to allege the procurement and connivance of the plaintiff in bar of his suit. The issues when finally framed must be tried by a jury and the defendant may apply for the allowance of a suitable counsel fee to enable her to defend the action.

Ordered accordingly.