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and 114 New York State Reporter ment should be vacated, the order appealed from reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.
BURCH V. BURCH.
(Supreme Court, Appellate Division, First Department. February 6, 1903.) L DIVORCE-ADULTERY-EVIDENCE.
Testimony in a divorce case held insufficient to justify a decree of divorce on the ground of adultery. Appeal from judgment on report of referee.
Action by Elizabeth B. Burch against Thomas Hamilton Burch. From a judgment confirming the report of a referee granting defendant an absolute divorce, plaintiff appeals. Reversed.
Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.
Charles W. Bacon, for appellant.
MCLAUGHLIN, J. This action was brought for a separation under a marriage contract on the ground of cruelty and nonsupport. The answer denied the material allegations of the complaint, and set up a counterclaim alleging adultery on the part of the plaintiff, and praying for an absolute divorce. The case coming on for trial, the plaintiff offered no evidence, and voluntarily submitted to a dismissal of the complaint, and thereupon the defendant introduced evidence to establish the allegations of the counterclaim, which were that the plaintiff, between the 4th and oth days of September, 1900, had committed adultery at the apartment of one Edith Lee, with a person whose name was unknown. He produced three witnesses, Edith Lee, Ann Elizabeth West, and Joseph W. Fisher,—whose testimony, if true, established the plaintiff's infidelity. The referee, as appears from his opinion, concluded that the testimony of the two former should be viewed with suspicion, and in this we agree; but to his conclusion that the latter sufficiently corroborated them to justify the granting of the decree we cannot agree. The testimony of the witness Lee, according to her own admissions, and the means which she employed to gain a livelihood, taken in connection with her explanation of why she did not go to Maspeth after leaving the plaintiff at Trainor's restaurant; her return to her own apartment the night the adultery is alleged to have been committed just in time to see the alleged co-respondent leave; her subsequent relations with or employment by the defendant, and her manifest interest in his behalf,-is entitled to no consideration whatever, and is insufficient to justify the dissolution of the marriage contract. Nor is the testimony of the witness West any better. She was a servant in the employ of the witness Lee, and manifestly was completely under her control. She had a "very poor memory," was "near-sighted," and little or no reliance could be placed upon what she said, in view of the fact that she was unable to give any intelligent description of the alleged corespondent, whom she claimed to have seen. Nor do we think the testimony of the witness Fisher, who testified that he saw the alleged co-respondent leave the Lee apartment on the evening in question, and, as he opened the door to come out, saw the plaintiff in the hall, scantily attired, when taken in connection with the other facts testified to by him, either standing alone or considered with the testimony of the other two witnesses, sufficient to sustain the conclusion reached by the referee that a divorce ought to be granted. Fisher lived in the Lee apartment. He was told who the plaintiff was by the witness Lee, and the day following he was asked by her if he saw the plaintiff and the man leave the hall the night before. He was unable to give any description of the man whom he claims to have seen, the clothing he had on, nor could he even tell whether he was white or colored. In opposition to this testimony the plaintiff positively denied having committed adultery, or that she was at the Lee apartment on the occasion referred to; and as to the latter she was corroborated by her maid, who testified that at the time when the adultery is alleged to have occurred the plaintiff was in her room at the Manhattan Hotel in this city. No suggestion is made that the plaintiff, except upon this one occasion, had conducted herself improperly, either with the alleged co-respondent or any other person, and it will not do to destroy the character of a woman upon such unreliable testimony as this. The consequences which follow a divorce are so great, not only to the parties immediately connected with it, but to others, that that judgment ought not to be rendered unless the testimony, after the most careful scrutiny, satisfactorily establishes the commission of the offense upon which the judgment depends. Moller v. Moller, 115 N. Y. 466, 22 N. E. 169; Mott v. Mott, 3 App. Div. 532, 38 N. Y. Supp. 261; Poillon v. Poillon (recently decided, and not yet officially reported), 79 N. Y. Supp. 545. This certainly cannot be said of the testimony upon which the judgment appealed from depends, and for that reason we think the judgment should be reversed upon the facts, with costs to the appellant to abide the event, and a new trial granted before another referee. All concur.
and 114 New York State Reporter
KRAMER V. KRAMER.
(Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. DEPOSITION-INTRODUCTION OF PART-OBJECTION TO Rest.
Under Code Civ. Proc. $ 883, providing that a deposition, when read in evidence, has the same effect as oral testimony of the witness would have, and an objection to the substantial competency of a question or answer may be made, as if the witness was then personally examined, defendant, at whose instance plaintiff's deposition was taken, though
introducing part of it, may object to other parts of it as hearsay. 2. HEARSAY.
Plaintiff's testimony that her husband told her his brother was in
debted to him is hearsay on the question of indebtedness. 3. NotE-CONSIDERATION-EVIDENCE.
Evidence that, three years before defendant executed the note, he was indebted to plaintiff's husband, does not show a consideration for the note.
Appeal from trial term, New York county.
Action by Gertrude S. Kramer against Edwin G. Kramer. From a judgment on a verdict directed for plaintiff, defendant appeals. Reversed.
See 74 N. Y. Supp. 1049.
Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.
Daniel P. Hays, for appellant.
McLAUGHLIN, J. This action was brought to recover the sum of $12,000, the amount of a promissory note, of which the plaintiff is the payee, and the defendant the maker. The answer, among other things, denied that there was any consideration for the note, or that the same was ever delivered to the plaintiff, and these were the two principal questions litigated at the trial. It there appeared that the plaintiff married Alfred E. Kramer, a brother of the defendant, in November, 1898; that, prior to or at the time of her marriage, Alfred E. agreed to give to her the note in suit, and on May 6, 1901, he handed her an envelope upon which he had written the following: "New York City, May 6, 1901. This is the personal property of Gertrude Short Kramer, to be delivered to her or myself only in case of necessity. A. E. K.” In August following she opened the envelope, and found therein the note in suit, which she produced at the trial, and then rested. It also appeared that the plaintiff's deposition was taken at the instance of the defendant prior to the trial; and, after the plaintiff had rested, defendant read certain portions of it, which established the fact that there was no consideration whatever passing between the plaintiff and the maker, and thereupon the defendant rested. The plaintiff, in rebuttal, called no witnesses, but sought to read portions of the deposition which had been omitted by the defendant, which were statements of the plaintiff as to what her
1. See Depositions, vol. 16, Cent Dig. $$ 276, 277, 301.
husband had told her at the time the note in suit was given, and which were to the effect that the maker was indebted to him. These questions were objected to on various grounds, and, among others, that it was hearsay and not binding upon the defendant. The objections were overruled, and exceptions taken.
We are of the opinion that the exceptions were well taken. Section 883 of the Code provides that a deposition taken as this one was, when read in evidence, has the same effect, and no other, as the oral testimony of the witness would have, and an objection to the relevancy or substantial competency of a question put, or answer given, may be made as if the witness were then personally examined, and without being noted on the deposition. A deposition, therefore, taken under this section, has the same effect, and no other, that the oral testimony of the witness would have; and the fact that a party at whose instance it was taken reads a portion of the testimony given, which is material and competent, as bearing upon the issue, does not permit the opposing party to read the portions omitted, if they are incompetent and duly objected to. This was distinctly held in Wanamaker v. Megraw, 168 N. Y. 125, 61 N. E. 112, where the court of appeals said:
"The party who has caused a deposition to be given on his behalf does not necessarily, by offering and reading parts of it in evidence, bind himself to read it all, or make answers which were irrelevant or incompetent admissible."
The precise point here presented was passed upon in Whitlatch v. Casualty Co., 21 App. Div. 128, 47 N. Y. Supp. 334. There counsel for plaintiff, after reading a deposition, insisted upon omitting a part of an answer. Counsel for the defendant objected to leaving this part of the answer out, and urged that all or none of the answer must be read, and thereupon the court directed the counsel for the plaintiff to read all or none of the answer, to which plaintiff excepted; and it was held that the exception was well taken. Mr. Justice Hatch, delivering the opinion of the court, said: "That part of the answer which was objected to did not state any fact.
It was incompetent as testimony, and could not have been read by defendant, if omitted by the plaintiff, unless the latter consented.”
The fact that the deposition was taken at the suggestion of the defendant, and that incompetent testimony was given which rendered the same inadmissible as evidence under the rules relating thereto, did not estop the defendant, when such testimony was offered in evidence, from objecting to it. Otherwise there is no force or effect to the section of the Code above referred to. What the plaintiff's husband said to her as to the defendant being indebted to him, in the absence of the defendant, or some admission on his part, is clearly hearsay, not binding upon the defendant, and ought not to have been received. Nor did this evidence, if received, tend to show that there was a consideration for the note. The plaintiff had testified that there was no consideration passing between her and the defendant, and all that the deposition tended to establish, as bearing on that subject, was that her husband had said in 1898 that his brother owed and 114 New York State Reporter him this amount. But that fell far short of establishing the fact either that the brother did owe him that amount at that time, or, if he did, that he was indebted to him in 1901,—the time the note was given. All it established was that the husband said so, but no one would seriously contend that upon that statement alone an action could be successfully maintained against the defendant.
We are of the opinion, therefore, that the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.
(39 Misc. Rep. 611.)
CULLINAN V. KUOH.
(Supreme Court, Special Term, New York County. December 5, 1902.) 1. INTOXICATING LIQUORS — LICENSE – CANCELLATION – PARTIES — HOLDER OF
Under Laws 1897, c. 312, § 28, subd. 2, providing that proceedings to cancel a certificate authorizing the sale of liquors may be maintained against the holder of record where any provision of the liquor tax law is violated, “at the place designated in said certificate as the place where such traffic is to be carried on, by the holder of said certificate, or any person whomsoever in charge of said premises,” proceedings to cancel a certificate are properly brought against the one to whom the certificate was issued, though he has no connection with the business or with the
violation. Petition by Patrick Cullinan, state commissioner of excise, against one Kuch for cancellation of a liquor license. Cancellation ordered.
William E. Schenck, for petitioner.
BISCHOFF, J. There is no question that violations of the liquor tax law were permitted at the place designated for the sale of liquors in this certificate, and it appears that the business was conducted ostensibly under such certificate. The contention of the respondent is, however, that the business was not his business, nor was he connected in any way with the violations. This may be the fact, but still he cannot resist the cancellation of the certificate for the violations proven, nor escape the incidental liability for costs. As the holder of the certificate,"he is the principal whom the law will look to during the conduct of the business and will hold responsible for compliance with the statutory provisions." Lyman v. Kurtz, 166 N. Y. 274, 59 N. E. 903. The evidence supports the inference of his consent to the use of this certificate by the person in charge of the place, and, indeed, the statute appears to contemplate the responsibility of the holder, irrespective of an actual consent, while the certificate remains in his name, but in the possession of another, at the place designated for traffic in liquors. The proceeding to cancel the certificate is maintainable against the holder of record where any provision of the liquor tax law is violated "at the place designated in said certificate as the place where such traffic is to be carried on by the holder of said certificate, or by his agent, servant, bartender or any