The New York herald. [volume] (New York, N.Y.) 1920-1924, 1921-04-02
$4,000 ALIMONY
TO MRS. STILLMAN
4
Continued from First Page.

answer. but opposed the motion for ALI
fSnony and counsel fees. Before deciding
the motion / deem II proper TO pass
upon the exhihits-exhibit A, the alleged
letter from defendant to plaintiff. and
The exhibits B to II, inclusive, consist
tng of letters alleged TO have been writ
ten by the correspondent to defendant
and received by her and claimed to have
been delivered subsequently to the
Plaintiff. The defendant objects to the
use OF these exhibits by plaintiff.
Section S31 of the Code OF Civil Pro-
cedure provides as follows: Section S3l,
When husband and wife not com
petent witnesses: When competent-A
husband or wife is not competent 10
testify against the other upon the trial
OF an action, or the hearing upon the
merits OF a special proceeding. founded
upon an allegation OF adultery except to
prove the marriage or disprove the ale
ration or adultery. However, II upon
such trial or such hearing the party
against whom the allegation of adultery
10 made produces evidence tending to
prove any OF the defences thereto men,
TONED in Section 1853 of this action.
. the other party is competent to testify in
disproof of any such defence. A hus-
band or wife shall not be compelled or
. without the consent OF the other, II liy-
Ing. allowed to disclose confidential
communication made by one 10 the other
during marriage
= communications and transactions be-
+ tween husband and wife were early
y recognized as privileged and neither
could be compelled to disclose what took
place between them, and neither was
! competent witness to testify as to such
transactions and communications Of a
confidential nature or induced by the
marital relation.
Quotes Other Decisions.
"From experience II was found that
far less evil would result from the ex-
tclusion of such testimony than from Its
admission. 1t may in individual cases
work hardship, but the destruction OF
kconfidence between a hu shand and wife
would cause much misery and affect
THE marriage relation. This rule Is
founded upon sound public policy. Those
living in the marriage relation should
mot be compelled or allowed to betray
the mutual Trust and confidence which
that relation implies. wnen modified
by legislative enactment, no wider In
depreciation has been given than the
plain letter of the law demanded and
when by statute the disquaifica ton
was removed. allowing husband and
wife to testify as against each other,
and compelling them to testify, the rule
still obtained and did not affecs the
exclusion of privileged communications
between the spouses under the common
law rules.
1T is applicable though terminated by
divorce or by the death OF one Of the
parties. Letters between husband and
wife are within the protection OF the
rule as are oral communications and
tr, contents thereof cannot be disclo sed
unless the privilege is waived. Bow
man VS.. Patrick, 80 Fed. Rep. 1858;
Hopkins VS.. Grimshaw. 1865 U. s., 342.)
I'm the Bowman case, the wifa's adj
ministrator found among her papers let
tiers from her HUSBAND relating to mat
tiers in a suit in which he was then in
terested The administrator In spirit
o. hostility to the husband delivered
the letters to the other side, which
sought to use them. and the letters were
held privileged.
''In the Hopkins case, Mr.. Justice
Gray, delivering the opinion OF the court,
on page 349 SAID: AT common law, upon
grounds of public policy. husband and
wife with some exceptions not here
materially were not permitted even by
consent to give evidence for or aga INST
each other or to testify, even after the
ending of the marriage relation by death
or divorce. to private communications
which took place between them while 1t
lasted