#### PETTEE v. PETTEE.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

1. Divorce—Adultery—Connivance op Plaintipp.

A divorce will not be denied on the ground that the adultery charged was committed with the connivance of plaintiff, where it appears that he permitted defendant to go to the house where the adultery was committed, and then employed friends to watch her, but that he took no affirmative steps to bring' about a meeting between defendant and her supposed paramour.

3. Appeal—Harmless Error.

Where improper testimony of a party is stricken out on his motion, without objection from the adverse party, the error in its admission is cured.

3. Adjournment of Trial—Discretion of Court.

Granting a postponement while the trial is in progress is a matter of discretion, and the decision of the trial court will not be disturbed unless it appears that its discretion was abused.

Appeal from special term, Essex county.

Action by Frank H. Pettee against Mary H. Pettee for divorce. From a judgment entered on an order confirming the report of a referee granting an absolute divorce, defendant appeals. Affirmed. For former report, see 19 N. Y. Supp. 311.

The opinion of A. D. Wait, Esq., the referee, is as follows:

In considering and determining the question presented in this case, as to the charge of adultery alleged to have been committed by the defendant, 1 follow the rule approved by the court of appeals in Allen v. Allen, 101 N. Y. 058, 5 N. E. 341. And notwithstanding the defendant in her verified answer to the complaint, and as a witness on the trial in her own behalf, denied that she ever committed adultery with one Larry Owens, as alleged, I am clearly satisfied, from a careful consideration of all the facts and circumstances proved, bearing upon the question, that defendant did in fact commit adultery with said Owens at the house of Geo. M. Bissell, in the parlor bedroom, the 18th day of July, 1891. The defendant was on that occasion at that house on a visit, as she had been a short time before, lodging, while she remained, in the same bedroom; all the other inmates of the house, on the evening of the 18th, having apparently retired for the night, leaving defendant and Owens alone in the parlor, from which a door opened into said bedroom. When they were left alone, the defendant and Owens, in a short time, went from the parlor into the bedroom, and were there, as defendant testified, about half an hour, before they were disturbed by the intrusion of others. They were lying upon the bed, with a sheet over them. This is conceded by the defendant, but she denies that the door was locked, or that the light was turned down. She did not testify that the door was open while they were thus occupying the bedroom. The evidence shows that it was closed and locked when it was forced open. The defendant and Owens were discovered in the occupancy of the bed. Why were these parties upon that bed together, under the circumstances? The defendant could tell, and had an opportunity of telling, as a witness; but she says nothing, only that adultery was not committed. If any explanation of the occurrence could be given to show innocence, I assume the defendant would have given it, when upon the stand. It is a fair inference that they went into the bedroom to have sexual intercourse, and they had ample time and opportunity to have such intercourse before they were disturbed and expelled. Both parties seem to have been ready and willing and eager. There was no demurrer or dilatory plea interposed. Their proceedings and modus operand! appear to have been summary. No time was lost in preliminaries. They did not undress, but took to the bed at once, as readily as a “duck takes to water,” all accoutered as they were, except Owens had no coat or shoes on. How did they spend the “half horn’?” Possibly they did not have criminal intercourse, *1068but occupied the whole time “billing and cooing,” and visiting in a Platonic way, and that was all they were there for. Owens, if they had not been discovered, intended, apparently, to go to his own room, and spend the rest of the night in “the virtuous couch” that awaited him there, after he had finished his visit in defendant’s bedroom, in my opinion, it is a just and reasonable inference from the evidence that adultery was actually committed by the defendant on that occasion.

Though the adultery charged is established, the plaintiff is not entitled to a divorce, where the offense was committed by the procurement or with the connivance of the plaintiff. Code Civ. Proc. § 1758. It is claimed by defendant’s counsel, in the very able and elaborate brief he has submitted for my consideration, that the evidence is abundant to prove that, if the adultery charged is established, it was committed by the connivance of the plaintiff. I am unable to discover iú the evidence any ground for the c’aim made that plaintiff connived with Owens to debauch the defendant, or that Owens, in anything done by him with, or in connection with, defendant, acted by the procurement, or with the knowledge and approval, of the plaintiff. Therefore, it is unlike the case cited (Myers v. Myers, 41 Barb. 114), in which the learned judge who decided that case concluded it was “a most bungling, not to say wicked, conspiracy and connivance” between the plaintiff and Wood to procure the adultery charged to have been committed by his wife with said Wood, and therefore dismissed the bill.

There is evidence showing that the plaintiff and defendant, after their marriage, did not always live happily together. They had some misunderstandings and discord; but, in the main, they lived together harmoniously and contentedly, and their domestic relations were mutually agreeable and satisfactory, though it appears that the plaintiff married the defendant with some reluctance, and acted upon the advice of his mother in doing so, and soon afterwards expressed regret to his mother that he had followed her advice, and married defendant. Yet, so far as appears, he had become reconciled to the situation, and they had been for years living together contentedly and happily, and were so living at the time of the sale of the hotel property by plaintiff, in 1891. And there is no evidence to show that the plaintiff was then aware of any intimacy between his wife and Owens, or that plaintiff and his wife were not on good terms with each other, or that he then entertained any suspicion of her chastity, or was contemplating a separation or divorce from his wife. It does not appear that the defendant made any objection to the sale of the real estate, or was dissatisfied with the sale. She united in the conveyance of the land at the request of the plaintiff. In consenting that she might go to Bissell’s, and remain for a few days, before going to the lumber camp with him, though he knew that she might see Owens while there, he had no information or suspicion of any impropriety or danger in that circumstance. He supposed, merely, that she would pass the time visiting with her friends in a friendly and sociable way'; and he would then come for her, as he did, to join him at his camp, and take charge of the same. They were then living together agreeably, so far as appears. There had been no recent occurrence to excite ill will on his part towards her, nor any estrangement between them. So far as the plaintiff knew or was informed, the defendant was to join him in a few days at his lumber camp, some three miles away, and take charge of the same while he remained there. He had no suspicion or design that it was to be otherwise, or that anything improper was to occur, or would be likely to occur, between his wife and Owens, or between her and anybody else, in the interim. So he consented that she remain for a few days, and make the visit, and he would then come out for her, as he did, and take her to the camp. When he came for her, and took her with him to his camp, nothing had occurred, that he was aware of, on the part of his wife, of an exceptionable character, during her visit, nor was he aware that anything had occurred to excite tne suspicions of the Bissells as to her cnastity, nor was he aware that she contemplated being, or had informed anynody that sne intended to be, at Bisseil’s again, on the 18th. He had then no suspicion whatever of any wrongdoing on the part of his wife, or of any undue intimacy between her and Owens, or that she had any desire to visit or be with Owens, or that such was any part *1069of her purpose in going to and remaining at Bissell’s. His wife returned with him to his camp, and they cohabited together as usual. A few days afterwards, plaintiff! was informed by Bissell and wife of what had occurred while defendant was at their house on the occasion referred to, leading them to believe defendant was unduly intimate with Owens, and that defendant had committed adultery with him at their house. They informed plaintiff of what they had observed the night of the 11th of July, inducing them to believe that defendant had committed adultery m the parlor bedroom. Mrs. Bissell testified, on her direct examination, that, when she informed plaintiff of this, “he said, ‘Mother, why didn’t you tell me this before? Why didn’t you rout them out?’ and I said 1 wanted him to see for himself. He said he would be out the next Sunday night, and that probably they would be there, as I heard that she was coming out to visit Owens. I told him this, and he said he would be there.” On her cross-examination, she further testified: “I asked him if he ever mistrusted that Mary wasn’t true. He said ‘No,’ at first; then said: "Mother, 1 will tell you the truth. I have mistrusted something.’ And then I told him all; said I did not want to interfere; that he could find out for himself. And he said he couldn’t go back to the shanty, and live with her; but I told him he must, and he promised me he would. He said he would -come the next Saturday night, to catch her. We were to keep watch, and inform him where they were when he got there. I stated to him, in substance, that there was no doubt in my mind but they occupied the same room, and that if he would come there the next Saturday night he could catch them, and he said he would come.” The plaintiff, in answer to questions put by defendant’s counsel, testified as to this conversation: “Mother said to me, ‘Did you ever mistrust anything wrong about Mary?’ I told her,‘No.’ .Then she said: T must tell you, then. I can’t bear to have you live with such a woman, and not know what she is.’ She said that they were pretty sure that she and Larry were in the room together—in the parlor bedroom—that Saturday night before, and also mistrusted they had been there for two nights; and she told father that she thought he was in there, and he got up, and went up stairs, and looked in his room, and he wasn’t there. He said, if she was going to tell me, the best thing was to wait, and let me see for myself. They told me to go to the shanty, and use her just as well as I ever did, and see if she was a bad woman; I could see for myself with my own eyes. Mother said she was coming out there again. Saturday, and, if there was anything wrong about it, 1 could know for myself; I could catch him at it. She said Mary would be out again Saturday, and fo." me to let her come, and I could see for myself. My mother said, in substance, that she was satisfied that my wife had committed adultery with Owens. It was then talked between us that I would return there on the 18th, after dark, for the purpose of catching my wife and Owens in a room together.” Tin' plaintiff further testified that he returned to his lumber camp, and lived with her as a wife. He says: “I saw her every day; I was at the shanty every night. Slept with her. Saw her in the morning before I went to work. Saw her in the morning of the 18th. Saw her last at the shanty after dinner that day.” He further testified that some time during this week his wife asked him if she could go to Newcomb, visiting, and he consented that she might: that he expected, when he then consented, that she would go to Bissell’s, and meet Owens there. The defendant testified that she said to her husband, in substance, that if he would let her go out to the settlement, and stay a little while, that when she came back she would discharge the Sibley girl, and get along with the Baker girl. “I asked him the privilege of going out for the purpose of visiting. It was not stated in that conversation at what place I proposed to visit, only just he told me to go there, to his folks, and I told him that I was going to Geo. Ward’s. I didn’t mention any other places.” Geo. Ward was a brother-in-law. The defendant, having obtained permission of her husband, started for the settlement; her husband following soon after for the purpose of watching, and arranging for watching, her movements, understanding, from the information he had received, that she would go to Bis-sell’s for the night, and have there an opportunity to be with Owens. He made arrangements with the Bissells to be on the lookout at the house, and he and Dana would remain under cover, at a sawmill in the vicinity, until *1070after dark, and then appear at Bissell’s. This arrangement was carried our, and an opportunity afforded to defendant and Owens for illicit intercourse. The readiness with which defendant and Owens availed themselves of the opportunity presented of repairing to the bedroom, and taking to the bed, is suggestive of an inference that they had been there before, and enjoyed' it, and were then looking out for, desiring, and anticipating the opportunity that came to go there again. The plaintiff had been assured by Mrs. Bissell, and believed, that if defendant was permitted to carry out her intentions, of being there on the 18th, she would meet Owens, and they would take the opportunity to have illicit intercourse, and, in that event, plaintiff could be there with witnesses, and catch them; “Could see it with his own eyes.” And, as Mrs. Bissell foretold, so it came to pass.

Does the evidence establish that this offense was committed with the connivance of the plaintiff? I must hold that it does not; that the proof is insufficient to establish this defense in the “eye of the law,” unless I am liberty to decide that the legal significance of “connivance,” in an action for a divorce on the ground of adultery, is broader and more extensive than'ivas held by the supreme court of Massachusetts in the case of Bobbins v. Bobbins, 140 Mass. 528, 5 K. E. 837, and in the recent case in same court of Wilson v. Wilson, 154 Mass. 194, 28 N. E. 107. My attention has not been called to any American decision, and I have been unable to find any, in hostility to those adjudications upon this question; and, notwithstanding they may not be in harmony with all the dicta and doctrine on the subject found in the English ecclesiastical cases cited, 1 am inclined to regard them as the best and most authoritative evidence of the law on the question in this country, now extant. It may be that the courts of this state will hold differently hereafter, when the question is presented. In the light of those decisions (Bobbins v. Bobbins and Wilson v. Wilson, cited above), I am unable to conclude, from the evidence in this case., that there was any corrupt intent on the part of the plaintiff that his wife should commit adultery, or that his conduct is to be regarded as an assent to it. Though he may have consented to a scheme to detect the defendant if she was guilty, and this particular act of adultery could not have been committed, had the husband not consented to the opportunity, such conduct, under the circumstances disclosed by the evidence, does not, as a matter of law, amount to connivance. The plaintiff is therefore entitled to a divorce.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

McLaughlin & Rowe (C. B. McLaughlin, of counsel), for appellant.

S. H. Bevins (Francis A. Smith, of counsel), for respondent.

MAYHAM, P. J.

The fact that the defendant was guilty of the adultery charged in the complaint is not, apparently, controverted by the appellant, and cannot, we think, under the evidence, be successfully denied. The real question, therefore, to be considered on this appeal, is whether the learned referee and judge at special term erred in refusing to find and decide*that such adultery was committed with the knowledge, privity, or consent of the plaintiff, and in finding and deciding that such adultery was committed without the knowledge, privity, or consent, connivance or procurement, of the plaintiff. By section 1758 of the Code of Civil Procedure, it is provided as follows: .

“In either of the following cases the plaintiff is not entitled to a divorce, although the adultery is established. First. Where the offence was committed by the procurement or with the connivance of the plaintiff.”

This branch of the case was exhaustively examined by the learned referee in a well-considered and elaborate opinion, reaching the conclusion that the plaintiff did not conspire with the co-respondent, *1071Owens, or any other person or persons, to cause or promote the adulterous intercourse complained of, and that the adultery was not committed by the procurement or with the connivance of the plaintiff.

It is insisted by the learned counsel for the defendant that the facts, as found by the referee, do not justify the conclusion reached by him. A careful analysis of the findings of fact by the referee fails to disclcse anything in the employment of the co-respondent, Owens, by the plaintiff, or in plaintiff’s continuing to board him after he concluded his service. ¡Nor can any legitimate inference, adverse to the plaintiff, be drawn from the sale and conveyance of his hotel property, or the storing of a portion of his furniture with his mother, Mrs. Bissell, where Owens was subsequently employed and boarded and lodged. The referee finds that up to the 18th of July, 1891, the defendant had not committed adultery with Owens, but that, on the 13th of July of that year, plaintiff was informed by Mrs. Bissell of her suspicions of improper intimacy between the defendant and Owens, and that the defendant would desire to come to Bissell’s the next Saturday, and if she came, and the plaintiff would follow her, he could verify the suspicions expressed by Mrs. Bissell. The report finds that the defendant did request permission of the plaintiff to visit Bissell’s on the Saturday night referred to, and that such permission was granted, and the plaintiff then arranged with friends to assist him in watching the movements of the defendant, and thus detect her infidelity with Ovrens, if any occurred. It is to be observed that the evidence does not disclose, nor does the referee find, that the plaintiff took any affirmative steps to bring about a meeting between the defendant and Owens at the time of the occurrence of the alleged adulterous intercourse. It is true that his suspicions had been aroused, and he sought to detect her infidelity, if it existed, and took no steps to prevent the defendant carrying out her manifest purpose of meeting the man whom he suspected as being, and who proved to be her paramour. But he left her to her own volition. This, we think, he had a right to do. Any other rule would compel a husband to impose upon his wife undue restraint, and might often lead to the utterance of unfounded suspicions, well calculated to disturb the harmony of domestic relations. While the law very justly condemns any act on the part of the husband by which he voluntarily leads his wife into temptation, or in any way connives at or procures her defilement, it does not prevent him from scrutinizing her conduct, or detecting her in her voluntary violation of the sanctity of the marriage relation.

But it is insisted by the defendant that the learned referee erred in allowing the plaintiff in this case to be sworn, and give evidence in his own behalf, under the objection that such evidence is inadmissible under section 831 of the Code. If this testimony had not been voluntarily stricken out, on motion of the plaintiff, without objection, we think it would have been error, for which this judgment should be reversed. But as all of the plaintiff’s direct examination was stricken out by the court, on motion of the plaintiff, without objection from the defendant, we think that the same is out of this case, and can therefore do the defendant no harm. The defendant. *1072therefore, having made the plaintiff her own witness, and proved by him, with great particularity, all the facts relating to his conduct, and that of the defendant, claimed by the defendant to bear upon the charge of conspiracy and connivance of the plaintiff, she cannot object to the explanations to that evidence given by the plaintiff on a redirect examination of the plaintiff.

Nor do we think the referee erred in refusing to grant an adjournment, as asked for by the defendant, to procure the attendance of the witness Sibley. The granting of an adjournment while a trial is in progress is .largely a matter of discretion, and nothing short of an abuse of that discretion would justify the court, on appeal, in re» versing for such refusal.

We see no error committed by the referee in his findings of fact, conclusions of law, or rulings upon the trial, for which this judgment should be reversed. Judgment affirmed, with costs. All concur.