New-York tribune., 1921-04-02
StilI111an Acts
To Tie Up Big
Grant TO Wife
Continued from page one

written by Mrs. Stillman to /her hus-
band, Justice Mo..~hauser said:
Communications ana transactions
between husband anl wife were early
recognized as private and neither could
be compelled to disclose what took
place between them and neither was a
competent witness to testify as to such
transactions or communications of a
confidential nature CIR induced by the
maritime relation.
From experience It was found that
far less evil would. result from the
exclusion of such testimony than from
its admission. 1t may, in individual
cases, work hardship. but the desttuc-
ton of confidence between husband
and wife would cause much misery
rule is founded upon public policy.
Those living in the marriage relation
should not be compelled or allowed to
betray the mutual trust and confidence
which such relation implies.
When modified by lcgislativS enact
ment, no wider Interpretation has been
glven~than the plain letter of the law
demanded and when, by statute. the
specialization was removed allowing
husband and wife to testify as against
each other and compelling them to
testify, the rule still obtained and did
not affect tho exclusion Of privileged
communications between the spouscs
under the common law rules. 1t is
applicable, though terminated by di
vorce or by the death Of one Of the
parties"
AS to the letters alleged to have been
written to Mrs. Stillman by Beauvais,
Justice Morschauser said:
ut is debatable question whether
exhibits 'B' to 'H' should be received
upon plaintiffs affidavit unaccompanied
by other affidavits. Matters plaintiff
cannot testify to on the trial bearin.:
on the merits or special proceeding
under Section 81, Code of Civil Proceed
are, he should not. be permitted to place
IN an affidavit on motion of this kind
when the defendant objects. He can
not testify to the handwriting Of the
defendant or Of the correspondent in
actions Of this kind. The husband or
wife IN actions for divorce founded on
adultery is permitted to testify to the
marriage or disprove the allegation of
adultery. And Section S3} of the code
did not limit the testimony to denial
simply but gave the right generally 80
disprove the allegations Of adultery
to show that the allegation was not
proved, and that the defendant could
fact or circumstances within defend
ants knowledge. competent and ma
terial on the question as to whether
the act as charged was committed.
There are numerous methods by
which these exhibits 'B' to III may
be made competent and proved, but not
by the testimony of the plaintiff or by
his affidavit, where objection is made
thereto.
"The exhibits should not be consid-
cred by US upon this motion. There
are many statements in the respective
affidavits of plaintiff and defendant
that | believe are not competent in
case of this kind. l did not consider
them on this motion when 7 believed
they violated the rule.
sThe plaintiff presents with his af-
fidavits testimony taken at the hearing
before the learned referee as to the
acts and conduct of the defendant. She
denies these acts and conduct in her
affidavits, the trial is pending and she
has not been examined. The defendant
has amended her; answer and charges
acts and conduct upon the plaintiff of
similar character as charged by him