New-York tribune., 1907-06-07
GOULD MOTION ARGUED.
WIFE'S CHARGES IN SUIT.
Her Counsel Opposes Effort to
Strike Ont Certain ALLEGATIONS.


Howard Gould's notion brought by his at
torney, De Iancey Nicoll, TO strike out certain
allegations made in the bill of complaint in the
suit for separation brought by his wife Kath-
crime Clemmons. argued before Justice Nc
Call in the Supreme Court yesterday. After an
argument which lasted over two hours Mrs
Gould being represented by her counsel. Clarence
]. Shearn both sides got until Monday 10 file
briefs Mr. NicolI also asked for an extension OF
time in filing answer TO Mrs Gould's COM
plant. and this was granted, Mr.. Shearn Of
fertng no objections.
Mr. Nicoll in opening. said that his motion
to strike out from the complaint several
allegations which would rightly come under a
suit for divorce and which he called irrelevant
and scandalous. Mr.. NIcou includes among
these the allegation:
That for more than two years prior 10 the com
menCement OF this action defendant caused
tins nome and wherever plaintiff sojourned b.
spies and detectives, whose surveillance OF the
plaintiff a harassing annoyance. q wantOn
and open insult to and humiliation Of the plain
tiff and was maliCiOUsly calculated and in
tended by the defendant.
That in August 1906 the defendant caused
this agent. -, to change the lock upon the
mail bag used by defendant for the transmits
sion of plaintifTs mail received AT the postoffca
at Port Washington and procured and caused
said (agenD --, to open, read and intercept
sealed letters addressed 10 plaintiff and 20 re-
He also wishes struck out the charge that the
defendants conduct with other women in 1904
1908 and 1906 was improper and was carried on
so openly and notoriously as to insult and hu-
initiate and bring shame and contumely upon
this plaintiff"
Now, all OF these allegations" said Mr. Nfcou
ARE found in that part Of the complaint which
demands Judgment for separation on the ground
of cruelty and that brings us at once To the con-
sideration of what under the laws Of the state
constitutes legal cruelty. If these allegations
constitute legal cruelty in the State of New
York they should be included in the complaint.
II not they should be stricken out as irrelevant
and scandalOus."
Mr. NicoH contended throughout his argu-
ment that these allegations did not come under
the head Of legal cruelty.
The allegation that NIr- Gould surrounded
his wife with spies and detectives" he said,
would not constitute charge that Mrs Gould
was treated cruelty. nor would the allegation
that Molloy. the agent, tampered with her mail
go to show that it constituted any physical in
jury TO her. The allegations as 10 GouId's re.a-
tions with other women are the most important
matter"
Mr.. Nicou then recited several cases in con-
tention of his claims that these should be
stricken out.
Justice Mccall asked Ar Nicou If his con-
the fact of physical injury must be first estab-
lshed.
Mr. Nicon said that it was the rule in tie
United States and England that there should be
physical injury such mental injury would
result in physical injury or injury 70 the health
of the complaining party
In opposing the motion Mr.. Shearn said:
Appropriately enough the defendant in this
action does not appear 10 be able 70 appreciate
lPl a q
such acts as we have alleged or in open conduct
with immoral women and in surrounding her il
her home and places where she visited with
spies and in opening and tamperinS with ner
mail.
Mr. Shearn questioned AR NicoIs interpre-
tation of legal cruelty, and asked thar they
start this motion with a clear appreciation OF
the burden that was placed upon the defendant
before he could succeed.
This motion is made on two grounds ne
said; "one of irrelevancy and the other that the
allegations in our complaint are scandalous. OK
course. in any action for a divorce the alleSa-
tlons made TO secure decree must be Of scan
dalous nature. That arises from the nature OF
such cases, and the only exception which your
honor can take COgniZanCe of is that or rrele
vanCy. The question is whether the facts sousnS
10 be stricken out have any bearing on tlls
subject matter of this litigation. and II IIeS
have this motion must be denied
Mir. Shearn cited several authorities 20 snow
that his contention was upheld by the courts
tionS not favored by the courts and WotIt
not be granted except where II was shown ina
the granting would not in any way hurt 'n'
plaintiff work injury upon her -
Among the other allegations made by MIs
Gould That she abandoned ON IIo
defendant; that he refused TO provide TOR HSas1
although his income was in excess OF SltJV,VUV
a year and the value of his real ana pJ. pc
sonal property exceeds $2O,OOOOOO; that t.s
defendant hired one William c. Woodward aiLa'
Hawley. "ex-ConviCt and notorious nm
tnal," to procure persons to testify that .L
plaintiff had husband living at the time un5-
she was married 10 the defendant She also a.
leges that the suit brought by Woodward asaIhSN
the defendant part of a plot 10 give hotO
rtety to the and that Woodward. Win tL.0
cooperation OF members of the Police DepaI...
ment. Illegally acting as defendants prlV1ss9.
detectives, by offers OF money and by thress'
OF arrest and police prosecution. has been GU
deavortng to procure from frequenters or rGces
tracks and employees Of gambling houses slsE-s
statements purpOrting to cOrroborate the Ials'
charge, in support of which the said WoOdwaIu
alias Hawley, agreed with the defendant Lot
the consideration aforesaid TO supply VII
nesses."