#### James H. Rowe, Plaintiff, *v.*Mary Jane Rowe, Defendant.

(Supreme Court, New York Special Term,

June, 1898.)

Absolute divorce — Identification of the defendant by a photograph.

Where the defendant in an action for an absolute divorce has been identified by accusing witnesses only through her photograph, the evidence should be clear that the exhibit is her photograph and there should be some corroborative evidence of her residence in the locality, where it is alleged that she committed adultery, or a description of her appearance and her age, to the end that her guilt may not rest wholly on opinion evidence.

Action for an absolute divorce.

Henry B. Wesselman (A. J. Skinner, of counsel), for plaintiff.

No appearance for defendant.

Laughlin, J.

This is an action for an absolute divorce. Tbe defendant has not appeared. ' The summons was served by publication and by mailing a copy, together with the order authorizing such service to the defendant at Sandwich,. III., that being her last known place of residence, a.s disclosed by the papers upon which the order for service by publication was granted.

It appears .that before such service was made, the defendant changed her place of residence and her whereabouts could not be ascertained for the purpose of making personal service without ihe *114state. It is not at all probable, therefore, that the defendant is aware of the commencement or pendency of this action.

Notwithstanding the fact that the summons has been regularly served pursuant to our statutes, I think it proper that the court should, in determining the force to be given to uncertain or unsatisfactory evidence and in determining whether it is "free from suspicion, bear in mind that the defendant probably has no actual knowledge of.the pendency of the action. 1 .

The evidence shows that the plaintiff and defendant were married in this State, on the 29th of June, 1885, and that -they lived together in the state oí Hew Jersey until about five years ago, when the defendant left the plaintiff. .

The plaintiff has since continued to reside in Héw Jersey. The depositions of two witnesses of Sandwich, EL, were read upon the trial.

These witnesses identified a photograph as that of a woman who lived in Sandwich, El., from April 11 toSJune 18, 189,7, with a man named Altrogge or Oltrogge, and state that she called hérself his wife and was known as Mrs. Jeanette Altrogge or Oltrogge., .

A witness residing in Hew Jersey who was well acquainted with the plaintiff and who had seen.the defendant and had been introduced to her by the plaintiff at the witness’s store, and who had seen her at the plaintiff’s residence on one other occasion many years ago, identified the photograph referred to in the depositions as a photograph of the plaintiff’s wife.

This is the substance of the evidence presented to the court by the plaintiff.

I deem it unwise and unsafe to accept' such evidence as satisfactory "proof of the infidelity of the plaintiff’s wife. z

When the defendant in a divorce case has only been identified " by a photograph, the evidence should be clear and conclusive that the exhibit is the-photograph of the defendant, and there should be some corroborative evidence of the residence of the defendant in the locality or a description of the appearance and age of the defendant, so that the case would not rest wholly on opinion evidence.

The witness in Hew Jersey was not' sufficiently acquainted with the defendant to render his evidence reliable. The photograph may have been that of a sister or other relative of the defendant, or of some other woman resembling her.

*115The same is true of the evidences of the Illinois witnesses. They have merely given their opinion that the photograph is the likeness of the woman who lived there under another name. The case is barren of corroborative evidence by anyone who knew the defendant that she at any time resided or sojourned in Sandwich, 111., or as to her age, complexion or stature.

The complaint must, therefore, be dismissed, but without prejudice to an application to the Special Term of this court, for leave to open the case and introduce further evidence.

Ordered accordingly.