Appeal from Trial Term, Westchester County.
Action by William Lunham against Minnie E. Lunham. From an interlocutory judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.
As all communications between a husband and wife are not incompetent, if a party seeks to exclude evidence on that ground, the objection should fairly advise the court as to the true ground on which it is made.
[117 N.Y.S. 397] William L. Rumsey, for appellant.
William H. Wadhams (Frederick S. Fisher, on the brief), for respondent.
Argued before WOODWARD, JENKS, GAYNOR, BURR, and MILLER, JJ.
Plaintiff brings this action for an absolute divorce. The jury said by their verdict that on the 26th day of December, 1907, the defendant committed adultery with Hanford S. Moore. While the evidence to sustain this finding is not entirely satisfactory, we are not disposed to reverse the judgment upon the ground that the verdict is against the weight of the evidence. That the evidence established an opportunity for carnal intercourse on that occasion is true. This alone would be of little probative force, unless there was also evidence of such relation between the parties and such conduct on their part as would tend to establish that the desire and willingness existed to engage in such an act when the opportunity came. We do not propose to review all of the testimony offered to establish this. Certain of the testimony was received over the objection and exception of the defendant, and these exceptions, in view of the importance of the case, the result to the defendant, and the closeness of the question of fact, require careful scrutiny.
On the 2d of February, 1907, the defendant went to Bermuda. On the 5th of February, 1907, she wrote the co-respondent a letter in which she stated:
" Will write more when I have a chance. You understand. I feel so, when I reached Bermuda, that Mr. might be there to meet me; but I hope not. So be very careful what you write."
On the preceding day, on the steamer, she wrote a letter to her husband. This was offered in evidence, and it was claimed to be material, as showing that, at almost the very same time that she was writing to the co-respondent warning him to be careful, by professions of affection for her husband she was trying to throw him off his guard as to her relations with Moore. When offered, it was only objected [117 N.Y.S. 398] to as immaterial and irrelevant. After it had been received and spread upon the record, a motion was made to strike it out upon the ground that it was a communication between husband and wife. The motion did not specify as the ground of the objection that it was a " confidential communication," nor that it was " incompetent under section 831 of the Code of Civil Procedure." All communications between husband and wife are not incompetent, and, if a party seeks to exclude evidence upon the ground that it is within the statutory prohibition, it is the duty of the party objecting to fairly advise the court as to the true ground upon which the objection is based. Stevens v. Brennan, 79 N.Y. 254; Hamlin v. Hamlin, 117 A.D. 493, 102 N.Y.Supp. 571; Hoag v. Wright, 174 N.Y. 36, 66 N.E. 579,63 L.R.A. 163.Subsequently, and when the defendant had about half completed the testimony offered in her behalf, another motion was made to strike out this letter, specifying as the grounds of the motion that it was a confidential communication, and not admissible under section 831 of the Code of Civil Procedure. The objection at that time came too late. Failing to take the proper objection in the first instance, it was, to say the least, within the discretion of the court to refuse afterward to strike the evidence out on motion. Lindemann v. Brooklyn Heights R. R. Co. 69 A.D. 442, 74 N.Y.Supp. 988; Parkhurst v. Berdell, 110 N.Y. 393, 18 N.E. 123,6 Am.St.Rep. 384.
Carrie L. Moore, the wife of the co-respondent, was called as a witness for the plaintiff. She testified that in October, 1906, more than two months prior to the date upon which the jury found the adultery was committed, she called upon the defendant and said to her:
" I have been to see Mr. Lunham, and Mr. Moore admitted that he has been untrue to me, and he admitted that he was with you."
She said that the defendant replied:
" Mrs. Moore, you are mistaken. There isn't anything ...