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Smith v. Cockcroft

Supreme Court of New York, Appellate Division

February 2, 1912

EMILY A. SMITH, Respondent,
v.
JAMES COCKCROFT and Others, Appellants, Impleaded with CHARLES NELSON and Others, Defendants. EMILY A. SMITH, Respondent,
v.
HARRY F. BURNS and ELLA MCK. BURNS, Appellants, Impleaded with LE GRAND SMITH and Others, Defendants.

Page 256

APPEAL in the first action by the defendants, James Cockcroft and others, and in the second action by the defendants Harry F. Burns and another, from separate judgments of the Supreme Court in favor of the respective plaintiffs, entered in the office of the clerk of the county of Suffolk on the 15th day of April, 1911, upon the verdict of a jury, and also from separate orders entered in said clerk's office on the 7th day of March, 1911, denying respectively the defendants' motions for new trials made upon the minutes, and also, as stated in the notices of appeal, from the orders of the court directing the entry of the judgments appealed from.

COUNSEL

Rowland Miles, for the appellants.

Frank F. Davis [Raymond D. Thurber with him on the brief], for the respondent.

WOODWARD, J.:

These two cases involve the same issues, except as to the title of a certain piece of real estate, and this, in the view which we take of the questions involved, is not important here. The action is brought by one Emily A. Smith, as the widow of Epenetus Smith, deceased, for the purpose of recovering her dower interest in the real estate of which the said Epenetus died seized, and which is now held by the several defendants claiming title through him. On the 11th day of November, 1851, Epenetus Smith, a widower, married Emily A. Pierson, the plaintiff in this action, and four children were born to them between that time and October, 1857. At that time the plaintiff left the home in Crab Meadow, town of Huntington, and has since resided in and about the city of New York, supporting herself, as she testifies, by doing sewing, housekeeping, and latterly by the practice of palmistry. She had two living

Page 257

children at the time she left home, one of them a girl of five years of age and the other a boy of two, and she testifies that she came back to see these children at intervals until the girl had reached the age of fifteen years, since which time she has never visited the town of Huntington or made any inquiries after her family until the year 1910, when she appears to have sent for her son, who is still living, and to have returned with him to Huntington, where she resides with the son's daughter. For a period of forty-three years at least the plaintiff in this action appears to have lived within forty miles of the scene of her early married life without once visiting the place, and without making any inquiries, or giving any intimation of her whereabouts, and for a space of fifty-three years she appears to have made no claims upon her husband for support, nor does she appear to have insisted upon her rights as a mother to see her children, though she testifies to having returned to the place three or four times during the first year and several times subsequently, in the aggregate eight times, before she abandoned the effort to see them and retired from the scene. She testifies: 'I went away from that place in 1857, it was somewhere in October. My son Le Grand did not go with me, neither did my daughter Rebecca. After I went away in the fall of 1857 I was back four times that one year. On those occasions I did not see my children Le Grand and Rebecca. The year following I came again, and the year after that I was there. I kept up my visits to this place where my children were until my girl was eight years old, before I ceased to go there. * * * I always used to carry them up something until twice, the last two times I was there I didn't take anything because they wouldn't let me leave them.' The last part of this answer was subsequently struck out, but it is quoted as tending to show that the plaintiff, although concededly the mother of these children, was not permitted to see them or to leave presents for them, a most extraordinary thing if she was entitled to the rights of motherhood. Continuing, she says: 'On the last occasion when I went to the house I saw my daughter Rebecca. I also saw Le Grand at that time, but he didn't come near me; he stood down by the wagon house.'

Page 258

She says that she had some conversation with her daughter Rebecca on this occasion, that it was most unpleasant. 'After that I went away and stayed away; that was when she was fifteen years old; she was born in 1852. It was somewhere in the 60's. And from that time until last year I haven't been back in the neighborhood of Crab Meadow.' On cross-examination she says: 'After I left Crab Meadow in 1857, I returned the following spring, 1858, just when the trees were budding out; I remember it all. I didn't remain any length of time at all, I went right back, I couldn't see my children.' The next time she came she testified that she 'didn't remain any time, I went over to see them and left. I remained over night nowhere; sat in the woods until the boat got ready to go in the morning.' On the occasion of the third visit she testifies that she stayed upon the boat that night; 'the chambermaid said stay here, don't stay there if they treat you mean.' It appears that this woman was not without motherly impulses; she came to see her children, bringing them presents, but she was not allowed to see them, or to leave presents; the only time she appears to have had any conversation with either of her children was when the daughter was fifteen years old, or ten years after the plaintiff had left Crab Meadow, and this interview was not a pleasant one. Certainly, if the plaintiff had not forfeited her rights as a mother there was no reason why she should not have been permitted to see them; no reason why she should not have insisted upon seeing them. She appears to have been on a friendly footing with Epenetus Smith's own brother, and several other people in that locality, and having the desire to see her children she could have found a way; she could have insisted upon a mother's right to, and the fact that she did not seems to us to have a very important bearing upon this case, and one which has been largely overlooked.

The defendants set up as a defense to these actions that 'the said Epenetus Smith in his lifetime procured a judgment of absolute divorce within this State from his wife Emily A. Smith, upon the ground of adultery, and that the said Epenetus Smith never married again.' The plaintiff replied to this defense, denying the allegation, and upon the trial the defendants

Page 259

offered in evidence the judgment roll in an action for divorce in the Supreme Court between Epenetus Smith and Emily A. Smith, which judgment provided for the dissolution of the marriage, permitting the plaintiff Epenetus Smith to remarry, and forbidding the defendant Emily A. Smith to marry during the life of the said Epenetus Smith, and decreeing that 'the plaintiff have the sole care and custody of Rebecca Smith and Le Grand Smith, the children of such marriage.' Here, it would seem, is a very good explanation of the reason why this plaintiff was not permitted to see her children; the court had given Epenetus Smith, the father, 'sole care and custody' of these children, because of the wrongful conduct of the plaintiff, and when she was denied access to them she was compelled to acquiesce. Having no right to the 'care and custody' of her children, she went for a time in the hope of seeing them, and when finally she had a conversation with her daughter at fifteen years of age, which was not pleasant, she gave up the quest and went back to New York to live, remaining there for forty-three years with no effort to know more about any of them. In view of this condition, of this apparent acquiescence in what no virtuous mother would submit to without some show of resistance, what weight may be properly given to the plaintiff's unsupported statement that she was never served with process in this divorce action back in 1857? This was the one vital issue in the litigation, and the verdict of the jury, sustaining the plaintiff's cause of action as the widow of Epenetus Smith, rests entirely upon the testimony of the plaintiff, after a silence of more than half a century, during which time her status as a divorced woman has been established by a judgment of the Supreme Court, that she was never served with the summons in that action. The ...


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