Beadleston v. Beadleston

Bartlett, J.,

(concurring.) The issues in this action are made up of charges, and counter-charges of adultery, with denials by both parties. The case was tried before a referee, whose findings convicted the defendant, and acquitted the plaintiff of adultery. The referee’s report has been confirmed at special term, and from the judgment entered thereon the defendant has appealed. To the voluminous case and exceptions I have given the amplest examination and the most careful consideration, and I am satisfied that justice requires us to order a new trial. There is testimony bearing strongly against the defendant, and there is also testimony bearing strongly against the plaintiff. Much of this evidence is of a nature which does not permit it to be freely discussed in detail. The result to be reached depended chiefly upon the degree of credence to be given to the respective witnesses. After reading and re-reading the testimony, I cannot resist the impression that the learned referee applied a more rigorous test or measure of credibility to the defendant’s witnesses than that which he applied to the witnesses for the plaintiff. He refused to believe evidence against the plaintiff which appears to have been just as trustworthy as some of the proof against the defendant which he accepted as true. Ordinarily such action on the part of a trial court affords no sufficient ground for reversal. The judge or referee sees the witnesses, observes their bearing and manner of testifying, and is usually best able to determine whether their statements are credible or not. But this consideration is not controlling where the case shows that the judge or referee has made findings of fact without any evidence to sustain them, or against the evidence. In that event, doubt is cast upon the correctness of his decision in other respects, and the appellate court is not bound to assume that he must have been right in determining whom to believe simply because he saw the respective witnesses. Under such circumstances, the general term should look closely into the evidence in order to make sure that testimony in behalf of the appellant has not been arbitrarily disregarded. The only absolutely direct testimony to adultery on the part of the defendant was given by a person who professes to have been her paramour. There is proof that this man attempted to blackmail her before he made his accusation known. The respondent concedes that no reliance should be placed upon his evidence, except so far as it is corroborated by disinterested witnesses. The case against the defendant depended largely upon a pencil writing, appearing to be a draft of the body of a letter, in her handwriting, without address or signature, and alleged to have been intended for another paramour, in which she expressed regret that he did not come to her room on a certain occasion at Troy, 2ST. V. The referee found that the defendant committed adultery with the person to whom this letter was written, on a subsequent occasion, in a hotel at Troy. This finding is not supported by the evidence in the case. The proof as to what occurred at the Troy House in December, 1884, is utterly insufficient to sustain the conclusion that the defendant was guilty of adultery on that occasion. While this finding may not be essential to sustain the judgment, the error of the referee in making it is significant. He appears to have believed substantially all the proof offered in support of the charges of adultery against the defendant, and to have disbelieved all the proof offered in support of the charges of adultery against the plaintiff. Some of the evidence which he thus discredited certainly seems to be as cogent and convincing as some which he deemed credible enough to make the basis of findings against the defendant. Upon the record in this ease, if he was right in all his conclusions adverse to *814the defendant, he was wrong in wholly exonerating the plaintiff, and the finding that there is no proof of the commission by the plaintiff of any act of adultery whatsoever must be deemed to be against the evidence. This matter may appear in an entirely different light upon a new trial. Since the cause was tried, the law of this state has very wisely been changed so as to permit a party to a divorce suit to testify in disproof of a charge of adultery. Both parties to this action will therefore be enabled to meet the accusations against them by their own testimony, and the result of a new trial, even if precisely the same, cannot fail to be more satisfactory than any conclusion reached under the former law of evidence, which cjosed the mouth of the accused. The judgment should be reversed, and a new trial granted. I think the new trial should be had at the circuit before a jury. Another reference will inevitably involve too much delay.