#### Christopher Steffens, Appellant, *against*Lottie L. Steffens, Respondent.

(Decided November 3d, 1890.)

Under the amendment of 1887 to section 831 of the Code of Civil Procedure, making a party to an action for divorce, charged with the commission of adultery, competent as a witness on his own behalf to disprove the charge, such a party is not limited to a bare denial, but may testify to any facts or circumstances tending to disprove the facts and circumstances advanced to support the charge, or to avoid the inferences to be drawn therefrom. Since that amendment, the force of the reason requiring corroboration of the alleged paramour’s testimony has been considerably weakened, and the sufficiency of such testimony must now depend mainly upon the degree of credibility a judge or jury sees fit to attach to it.

In an action against a wife for divorce on the ground of her adultery, the alleged paramour testified to sexual intercourse with her in open fields in the night time. This was denied by her. There was no testimony that they were seen, at or about the times stated by him, in or near the fields mentioned, nor was there proof of any amorous conduct between them, or of a criminal attachment on her part for him, as hereconduct with him, shown by the evidence, although it might appear sjuspicious and improper; was capable of an innocent interpretation; evidence, also, offered by way of corroboration, as showing undue familiarities by her with otners, tended only to show indiscreet acts by her, not amounting to proof of criminality, or rested solely on surmises of her servants, or on their testimony to admissions by her to them of attachment for another, which she denied; and the testimony of the paramour was in itself full of improbabilities, and the referee, in finding for defendant, placed his disbelief thereof not only on its inherent improbability, but on the manner and conduct of the witness while under examination. *Held,*that such finding should be sustained.

Appeau from a judgment of this court entered on the report of a referee.

The facts are stated in the opinion.

*A. H.*Bailey, for appellant.

*Soraee*Graves, for respondent.

Bischoff, J.

This action was brought by plaintiff for a divorce from the defendant on the ground of her alleged adultery. The defendant in her answer denies the commis*364sion of adultery, and makes counter-charges of marital infidelity against her husband, and asks for a dissolution of the marriage on that account. The issues were referred to J. H. V. Arnold, Esq., as referee, before whom the parties duly, appeared, and each contested the accusations of the other. The referee reported to the effect that neither of the parties had been proven guilty of the offenses charged, which report was duly confirmed and judgment denying a divorce to either party was thereupon entered. From this judgment plaintiff has appealed to this court.

Careful scrutiny and consideration of the case on appeal fail to disclose any error in the conclusions of the referee, either upon questions of fact or of law.

The exception of the plaintiff to the admission of the defendant’s testimony in denial of the attempted proof of her adultery is not well taken. By section 831 of the Code of Civil Procedure, as amended in 1887, a party to an action for divorce charged with the commission of adultery is competent as a witness on Jjis own behalf to disprove the charge. This does not mean that.the party is limited to a bare denial of the charge. He may testify to any facts or circumstances tending to disprove the facts and circumstances advanced to support the charge or to avoid the inferences to be drawn therefrom (I*rsch*v. *Irsch,*12 Civ. Pro. Rep. 181).

A more serious question, however, arises on the sufficiency of the evidence relied upon by the plaintiff as corroborative of the testimony of Hiram Bull, the alleged paramour of the defendant.

■ The evidence submitted on this appeal fails to disclose any successful attempt by the plaintiff to substantiate the charge of adultery against the defendant, either circumstantially or directly, other than by the testimony of the alleged paramour. And a paramour, being *particeps criminis,*has always been classed with other accomplices whose testimony is relied upon to prove the guilt of the accused, and whose testimony has always been held to be subject to the same objections. One of these objections is that the testimony of an accomplice should not be deemed sufficient to warrant conviction, unless *365such testimony is corroborated in some material part by one or more credible witnesses. This requirement of corroboration, however, seems rather to be a precaution on the part of the court, than a rule of law. Sucli precaution, so far as it is applied to the testimony of paramours, is mainly founded upon the inability of the party charged with adultuiy to contradict the testimony of the alleged paramour, because of the legal in competency of husband or wife to testify as witnesses in actions for divorce brought by either against the other (2 Bishop on Marriage & Divorce, § 642, notes 1, 2, 4; Stewart on Marriage & Divorce, §§ 247 and 252, and cases there cited ; *Platt*v. Platt, 5 Daly 295; *Anon.,*17 Abb. Pr. 448; *Anon.,*5 Robt. 611; Taylor on Evidence, 967; 1 Greenleaf on Evidence, §§ 380, 381.)

Since the amendment of section 831 of the Code of Civil Procedure permitting either the husband or the wife to become a witness in an action brought by the other to procure a divorce on the ground of adultery for the purpose of disproving the charge of adultery, the force of the reason requiring corroboration of the alleged paramour’s testimony has been considerably weakened. And the sufficiency of the alleged paramour’s testimony must now depend mainly upon the degree of credibility a judge or jury sees fit to attacli to it. And since such amendment, the refusal, of the person charged with adultery to deny as a witness on his or her own behalf the truth of the alleged paramour’s testimony, may of itself be considered corroboration of that testimony. So, also, proof of the lewd, lascivious and lustful disposition or inclinations of the person charged with adultery may be sufficient corroboration of the alleged paramour.

The consideration of the question of corroboration, however, does not appear to be applicable to the present cáse. I fail to discover in the evidence submitted any. proof of lewd or lascivious inclinations on the part of the. defendant, outside of the testimony of Hiram Bull, to which I shall again refer.

The occurrences participated in by the defendant in the villages of Hillsdale and of Monroe, where she and Hiram *366Bull, in the presence and for the amusement of others, masqueraded and frolicked; the defendant’s attempt to inflict playful blows upon. William Bull on the occasion of the celebration of the anniversary of his twenty-first birthday, and the social games at the house of Harrison Bull, appear to have been nothing more than puerile sports and pastimes. And it would require a certain degree of moral debasement to seriously construe participation in these occurrences to be proof of lewd or lascivious conduct on her part, to which I would be reluctant to confess. It may have been unwise, looked upon from the standpoint of purely conventional propriety, for the defendant to-have taken part therein, but in the consideration of defendant’s guilt it manifestly would be unfair to interpret her actions by one’s own notions of what may or may not be proper conduct on the part of a married woman, so long as such conduct does not border on immorality.

The circumstances relied upon to establish the lustful disposition of the defendant in *Pfeiffer*v. *Pfeiffer*(9 N. Y. Supp. 28, 27 N. Y. St. Rep’r 56) were much stronger than those relied upon in the present case ; yet the court held in that case that, though the acts of. the defendant might appear suspicious and improper, if they were capable of an innocent interpretation, they must be so construed; a proposition which the presumption of innocence in the absence of proof of guilt makes imperatively applicable.

Hiram Bull, the alleged paramour, testified to undue intercourse with the defendant in open fields in the night time in or- near the village of Monroe; but it was not even-attempted on the part of the plaintiff to show -by the testimony of any other witness that the defendant and Hiram Bull, at or about the times stated by him, were seen in or near the fields mentioned.. And this case is also wholly barren of -proof tending to establish amorous conduct between Hiram. Bull and the defendant, or a criminal attachment on the part of the latter for the former. Nor have I failed to observe that, for the purpose of establishing such conduct and attachment, the plaintiff lays great stress upon one occasion when the *367defendant and Hiram Bull in the presence of their respective mothers and others were reclining on the lawn immediately in front of their then residence, with her head resting upon or against his person ; but it would require something more than a mere stretch of the imagination to distort this single occurrence into proof of a criminal attachment on the part of the defendant toward Hiram Bull. The conduct of the parties was not clandestine or accompanied by anything tending to establish consciousness of wrong-doing on the part of the defendant. Hiram Bull at this time appears to have been a lad hardly seventeen years of age, while the defendant was scarcely twenty-one, and, however reprehensible her conduct may have been because of this familiarity, owing to its likelihood to subject her to censure and adverse criticism, it is not improbable that in the exuberance of youthful spirits the defendant was more thoughtless than she would have been if she had arrived at maturer years. Under the circumstances it would be monstrous in the extreme to hold that this isolated occurrence branded the defendant with the mark of degradation, and established her inclination to surrender her matronly virtue to Hiram Bull. Conceding, however, for the moment, that the contention of the learned counsel for the plaintiff appellant is correct, and that evidence of undue familiarities toward persons of the opposite sex other than Hiram Bull is admissible in corroboration of his testimony, I do not hesitate to say that the evidence adduced for the plaintiff falls short of establishing such undue familiarity.

Such evidence, so far as it relates to Byrnes and is explained by his uncontradicted testimony and the testimony of the defendant, amounted to nothing more than the acceptance of mere conventional gallantry extended to the defendant by him. And the incident of the letter from the defendant to the plaintiff, falsely representing that she had not visited New York on the occasion of her trip there accompanied on the railroad train by Byrnes from Hillsdale to the Grand Central Depot, convicts her of falsehood, but of nothing more. It is true that it may seem unaccountable that she should have been guilty of this falsehood, but is it a just or reasonable *368inference, because the defendant had sought to hide from the plaintiff her visit to the city, that she must have been criminally intimate with Byrnes, without the slightest proof of any opportunity therefor ?

The other acts of undue familiarity with persons other than her husband consisted of suffering herself to be kissed by a Mr. Forbes, a Mr. Sayre, and a Mr. Harrison Bull, on the occasion of social festivities at the latter’s house, and while participating' in harmless games common to the people of Monroe. In participating in these games without the presence or the previous sanction of her husband, the defendant may have been indiscreet, but I am utterly unable to share the view that such indiscretion tends to convict the defendant of marital infidelity.

Other incidents urged by the plaintiff as corroborative of Hiram Bull’s testimony were that on one occasion she kissed one Everitt McDonald, who was residing at her husband’s house, and that on another occasion, and while McDonald was confined to his bed by illness, but without any attempt at secrecy, she entered his bedroom, remaining there but a very short time, her servant Margaret Flynn being in an adjoining room all the time, and knowing of her presence in the bedroom. In the light, however, of the uncontradicted testimony for the defense that McDonald was a near relative of the defendant, I would hesitate to convict her of adultery even though she may not have denied these incidents.

The attempted proof of misconduct with Gibbs seems to rest exclusively on the surmises of the defendant’s servants Margaret Flynn and' Margaret Neville, seemingly without justification. It appears that Gibbs resided with his mother on Fifty-seventh Street near Ninth Avenue, in the neighborhood of plaintiff’s residence; that liis place of business 'was in the lower part of New York; that he was in the habit of taking the cars for down town at or near the corner of Fifty-seventh Street and Ninth Avenue, at which place the defendant’s servants, from the rear windows of plaintiff’s apartments on Fifty-eighth Street corner of Ninth Avenue, had frequently seen him standing; that on several occasions these *369servants had observed a meeting between Gibbs and the der fendant; that defendant had vouchsafed no explanation to her servants of these meetings, and that, with no proof that they had been pre-arranged, and only because of the defendant’s reticence in speaking of them to her servants, they, the servants', concluded an intrigue existed between the defendant and Gibbs.

The evidence as to alleged undue familiarity with and as to correspondence between the defendant and Faircloth exists only in the testimony of the defendant’s servants, to the effect that the defendant had admitted to them that she had entertained an affection for Faircloth and had maintained a correspondence with him, and that, on the occasion of her visits to her aunt, Mrs. Phelps, in Jersey City, she had met Mr. Faircloth at her aunt’s where Mr. Faircloth and his wife were lodgers. I fail to see anything suspicious in these meetings between the defendant and Faircloth, and in view of his most- positive denial of ever having received any letters from the defendant, and the defendant’s equally positive denial of ever having corresponded with him, and also her denial of her ever having admitted to them an affection for him, I am not inclined to place any reliance upon the testimony of the servants as to these admissions. Such testimony does not directly establish the -facts alleged to have been admitted. The accuracy of the repetition of admissions is dependent entirely upon the witness’ intelligence, the reliability of his recollection, the correctness of his understanding, the difficulty of imparting the inflections or deflections of voice, and the gestures accompanying the alleged admissions, the reproduction Of all of which is essential to correctly convey the meaning of language employed in making the alleged admissions. Such testimony has always been regarded as evidence of the lowest order, to be accepted only with jealous caution. (1 Greenleaf on Evid. § 20).

The testimony of Hiram Bull, the alleged paramour, bristles with improbabilities, and should be rejected even though corroboration should not be requisite. It is difficult to understand how a lady of culture and refinement, such as the evidence *370shows the defendant to have been, with her chastity up to the time referred to unimpeached, could have submitted herself to the criminal embraces of a paramour, without previous amorous regard and affection having been established between them. According to Hiram Bull’s story, we are asked to accept as true that he and the defendant, on the occasions detailed in his testimony, without previous understanding, without the exchange of a single word expressing the intention of either party to meet the other with intent to gratify his or her lustful desires, or the occurrence of anything justifying in the slightest degree any suspicions on the part of Hiram Bull that the defendant would yield herself to him, impulsively proceeded toward the place where the acts of adultery are alleged to have been committed, and, arriving there and still under the same impulses, and without communication by one to the other of his or her desire, they had sexual intercourse. Hiram Bull while on the witness stand was utterly unable to account for the defendant’s submission to him, other than the reason (as he stated) that the defendant yielded to him because she was overcome by his personal beauty.

I desire in this connection also to call attention to the fact that the evidence shows that, after the institution of this action and subsequent to the time when, as is alleged, the plaintiff had acquired knowledge of the betrayal of his wife by Hiram Bull, and that the felicity of his home was terminated by her betrayal by him, he seems to have harbored the alleged paramour as a welcome visitor, and to have hospitably entertained him for several days. It may be that the plaintiff believed that to secure the testimony of the alleged paramour it was prudent to maintain apparently friendly intercourse with him for the time being, but if so, it scarcely justifies the claim of plaintiff’s counsel, that, inspired by a higher standard of morality of recent acquisition, and impelled by a spirit of repentance and a desire for atonement, Hiram Bull sought to make all possible reparation to the injured husband, and came forward voluntarily to confess his share in the wrong and assist the plaintiff in ridding himself of an unfaithful wife.

*371Fully satisfied as I am that the referee correctly ruled upon the legal questions raised upon the trial of this action, I do not hesitate to say that his conclusions upon the facts are fully justified by the evidence. To support his claim for dissolution of the bonds of matrimony with the defendant, a plaintiff must establish the commission of the act of adultery chaz’ged by a preponderance of evidence. If the weight of evidence be evenly balanced, or preponderate in favor of a defendant, the plaintiff has failed to show himself entitled to the relief claimed. To arrive at a just conclusion when the evidence is conflicting and the statements of the witnesses contradictory, the observance of the witnesses while under examination as to their manner and demeanor is essential to establish the degree of credibility which should be given to their testimony.

Izz the present case the referee, in his opinion accompanying the report, places his disbelief of the testimony of Hiram Bull, not only upon the inherent improbability of the truth of his statements, but also upon the manner and conduct of the witness while under examinatiozi and his demeanor when giving his testimony. In such cases, izi the absence of apparent injustice or gross and flagrant disregard of the evidence, the appellate court should not interfere.

In *Westerlo*v. *De Witt*(36 N. Y. 344), Judge Hum says : “ The genez’al dispositiozx of the courts is to sustain the referee in his findings of fact. This is not precisely the same question as if we were inquired of whether we should have- found the same facts and have determined the law in the same manner. It is, rather, are we so certain that the referee was in error upon the facts that we will assume to reverse his judgment. If the case is doubtful, the conclusion should *not*be reversed; if, upon reading the evidence, this court should be of the opinion that the conclusion might well have beén either way, then the fact that the referee saw the witnesses, heard them testify, and had the nameless opportunities of judging of their character that personal acquaintance can only give should induce us to defer to his judgxnent.” See, also, *Baird*v. *Mayor*(96 *372N. Y. 567) ; *Sherwood*v. *Hauser*(94 N. Y. 626) ; *Parrott*v. *Knickerbocker Ice Co.*(46 N. Y. 361).

The judgment appealed from should be affirmed, with costs.

J. F. Daly, J., concurred.

Judgment affirmed, with costs.