Opinion
10-23-1893
COOK v. COOK.
Claude V. Guerin and Frank P. McDermott, for petitioner. David Harvey, Jr., and John E. Lanning, for defendant.
Petition by Austin P. Cook against Mary A. Cook for a divorce on the ground of adultery. Decree for plaintiff.
Claude V. Guerin and Frank P. McDermott, for petitioner.
David Harvey, Jr., and John E. Lanning, for defendant.
GREEN, V. C. The situation in which the defendant was discovered with James Quinn is presumptive evidence that she was guilty of the charge of adultery. To establish the explanation which she sets up as her defense the burden of proof is upon her. She claims that her married life has been one of great hardship and unhappiness in consequence of the cruel treatment of her husband, both while they lived at Lakewood and after they moved to Newark. While living in Newark she was required to work away from home, and secured employment in a place known as the "Republican Club," where she was engaged as a laundress, and at which place she made the acquaintance of one James Quinn, who was a waiter at the same establishment. Her story is that her husband desired to get rid of her, and proposed that she should allow herself to be discovered while in a compromising position, by which he would be enabled to secure a divorce, promising to pay her, if she carried out his wishes, the sum of $200; and that he proposed, in order to carry out this scheme, that she should permit Quinn to be surprised by his witnesses while in her apartment at night That her life had been rendered so miserable and unhappy by her husband's treatment that she was willing that he should obtain a divorce from her, but that she absolutely refused to be guilty of the positive act of infidelity. She says that in pursuance of this arrangement, on the 11th of February, 1892, at her husband's instigation, she wrote a letter to Quinn, asking him to come to her house in the evening. That in response to that letter she received one from Quinn, stating that he would be there. Previous to this time her husband had stated that he was going to Asbury Park to look for work, and expected to be gone some time. She says that he returned in the afternoon of theday named, and was at the house in the evening at 7 o'clock, and talked then about carrying out this arrangement with reference to Quinn. She says that Quinn came there; that he entertained himself by reading the newspapers, until she went into the other room, undressed herself, and went to bed, in which her little baby was asleep, and that she went to sleep, and knew nothing of what took place afterwards until she was aroused by the presence of her husband and officers in the room. She does not say that she explained to Quinn the reason why she had asked him to come there, nor why he was expected to remain after she had retired. This story is, on its face, centainly a very remarkable one. It is hard to believe that a pure and virtuous woman would under any provocation permit herself to be discovered in a compromising position, either to oblige her husband or to be relieved of his presence or for a pecuniary consideration. Whatever sacrifice such a woman might be willing to make, it is not natural that she would be willing to blast her reputation in the community as a virtuous wife. But outside of the question of probability we must examine the testimony, and see if the evidence enables her to sustain the burden of proof thrown upon her. The husband denies in toto any such arrangement He says that his suspicions had for a long time been aroused as to her chastity, and that for weeks before the event he had had in his possession letters which convinced him that his suspicions were well founded. These letters were not admitted in evidence, because I did not conceive that the testimony sufficiently connected the defendant with any of them. The husband says that his pretended visit to Asbury Park was a device, and that he intended to watch his wife while she was under the impression that he had gone away. He denies having been there the evening before, and the testimony of the wife which would indicate that she knew that he was not in Asbury Park, but was in Newark, and likely to be at home. It appears that it had been the habit of the wife on retiring to lock the door of her apartment, and hang the key on the lintel of the door, out of the reach of the little child, and the husband had provided himself with a duplicate key that he was in the habit of admitting himself with when he returned. He says that, after watching the house with a friend, who corroborates his statement, he went home on the evening in question about 10 o'clock, and, having opened the door quietly and entered, he discovered his wife and Quinn in bed, both of them asleep, the little child being on the inner side of the bed. He immediately went out again, and secured the services of two policemen. These are regular members of the force, and in no sense detectives. One of them, Mr. Bohle, was found by Mr. Cook when patroling his post on Warren street, and, on being told by him that he desired him to go with him, they found Officer Stuckey, and went to the house with Cook and his friend Robbins. While there may be some little want of agreement in the statements of the parties as to what transpired there, it is but natural that some things which happened might not be remembered by one which were recalled by another; but the testimony of them all is in the main the same, and it is that Cook unlocked the door, and they went in through the kitchen into the bedroom, and there found a young man and Mrs. Cook and the child in bed together, and recognized the defendant as the person they supposed was Mrs. Cook. They were ah asleep and undressed, Quinn having on a small undershirt, and he was lying next to Mrs. Cook. Officer Bohle says that Officer Stuckey woke up Quinn, and that after he was awakened he touched Mrs. Cook and said, "Come, May, wake up," or something to that effect; "the police officers are here." Bohle says that he asked Quinn what he was doing, and he said he wanted to stop that some time ago, but Mrs. Cook would not let him. That Mrs. Cook said she thought Cook was in Asbury Park, and called him a liar. Quinn and Mrs. Cook were arrested by them, and taken to the fourth precinct. There is some discrepancy in the statements of the witnesses as to the order in which these parties dressed themselves after getting up out of bed, but I do not think this is material, as it is a matter about which the memory might naturally become confused. Officer Stuckey says that the parties were all in bed, Quinn lying next to Mrs. Cook. That he woke Quinn up, who had on a light shirt or undershirt, and that he (Quinn) put his hand up and touched Mrs. Cook, and said to her, "May, wake up; the officers are here." That she woke up, and drew the covering over her head, and that then he told Quinn he would have to get up, which he did, and got dressed. That Stuckey asked Mrs. Cook to get up, and told her she would have to go with the officer. She refused at first, and drew the covering up over her head. That he told her if she did not get up and dress herself he would have to take her the way she was, and thereupon she said, "Well, if you leave the room, I will get up and dress myself," and he went into the next room, and closed the door, and she got up and dressed herself. That as he was standing in the next room her husband stood near the door, where he could see into the bedroom, and she said to him, "I didn't think you would do anything as mean as this to me," or some remark of that kind, and that she said to her husband, You are a liar." This was about 10 o'clock at night. The same statement practically is given by Mr. Robbins, who was with Cook and the officers. There is absolutely no reason to suspect the entirehonesty of these witnesses. It is true that Robbins had been a friend of Cook for a long while, and it may be that he was an intimate acquaintance, but there is nothing to impeach his character, and his testimony only corroborates that of the two officers, against whom nothing whatever has been produced. I am therefore forced to the conclusion that the defendant has failed to establish the excuse which she set up, and must advise a decree for the petitioner.