The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-02-09
The Law of Evidence in Divorce Suits.

Inc Inv oi ENiucHce III DtNoICt ouitss
There is danger that divorce in the State.
OF New York will shortly become impossible
This danger arises from the amendment by
way of addition to the Revised Statutes
which has recently been favorably reported
by tho Judiciary Committee Of the ASSEM-
bly,.
The bill provides that no divorce on the
ground Of adultery shall be granted until
the plaintiff produces satisfactory proof of
two facts: First, that no such divorce has
been obtained from him or her by the de-
PENDANT in any of the courts Of this State;
aud. secondly, that no suit is pending in any
court o; the State In which the defendant Is
seeking such divorce as against the plaintiff
Now the object OF this bill, which is to pre-
vent two counter-suits for divorce from
going on at the some time, may be proper
enough; but our legislators have overlooked
the very important question, How is the re-
quirod proof 10 be obtainedl
The answer would probably be, that moth
Ing is simpler than for the plaintiff to take
the stand and swear that the defendant has
never obtained q decree Of divorce in this
State against him Tor her, as the case may
bel, and has not, at the time being, any action
pending against him for divorce.
The reply to this il, that such testimony Ia
not competent In law. The act of 1867, to
enable husband and wife to be witnesses
against each other in certain cases, provides
that nothing therein contained shall rem
der any husband or wife competent or com
pcllable TO give evidence for or against the
other in any action or proceeding instituted
in consequence of adultery or in any action
or proceeding for divorce on account Of adul-
terry, except to proue the fact Of marriage" 1t
is perfectly plain, then, that no court could
receive the testimony of the plaintiff as to a
former Judgment Of divorce or u pending
counter-suit.
Who, then, could furnish the satisfactory
proof without which the bill prohibits the
granting Of an absolute divorce The soy
cral County Clerks Of the sixty counties in
the State could tostifya as to whether decree
of divorce had already been pronounced be-
tween the parties, as the judgment, If it ex-
listed, would necessarily appear OF record.
But it would be rather expensive litigation
If the plaintiff in a divorce suit had to pay
the mileage and witness fees of sixty County
Clerks, subppnaed from every part Of the
State to attend the trial, say in this city
Or even suppose their certificates were ac-
ccptcd as sufficient, the time, trouble, and
expense required to obtain sixty Of these
documents would constitute an oncrous bur-
den upon litgants.
As to the proof required by tho last clause
Of the bill, that no countcr-sut for diyorc,
Is pending, we do not see how it can be sat
islactorily given. Certainly neither of tho
parties can 50 testify, being prevented 10y
the statute We have cited. suit might b,
pending for months, and yet nothing con
corning it would necessarily appear upor
the records Of any court. Must the plain
tiff call all the attorneys in tho State /,
show that they had not brought any sucl
action, or all the sane inhabitants of suitahl,
age to testify that they had never serve,
him with the summons in such Il suit ? Nc
how else could he establish this comprchcu
siyc negative ?
little reflection would have suggested {
better method of attaining the object sOugh
by the proposed amendment. Let the law
provide that if former judgment Of divorce
in the defendants favor, or the tendency q
a divorce suit previously brought by the de
PENDANT, be established upon the trial b.
affirmative proof no decree shall be rcndcrc,
in favor of the plaintiff There would be n
difficulty Of proof here, and the law woul,
, not involve tho absurdity of requiring
party to provo negative which could onl
be satisfactorily proved by his own tcsti
, mony, and yet as (Which his own tcstimun
, would be incompetent.