Opinion
04-15-1887
OSBORNE v. OSBORNE.
H. H. Wainright, for complainant. W. F. Abbott, for defendant.
On bill for divorce.
H. H. Wainright, for complainant.
W. F. Abbott, for defendant.
BIRD, V. C. The complainant is entitled to a decree. The proof satisfies my mind that Mrs. Osborne has been guilty of adultery with one Stratton. Stratton was a married man. He had a wife and two children; and, not very long after his intimacy with Mrs. Osborne began, he abandoned them. Very soon after his acquaintance with Mrs. Osborne, there was very great familiarity between them. They would take Mr. Osborne's horse and carriage and ride out together. Stratton taught school near by where Osborne lived, and for several weeks boarded at Osborne's. He afterwards taught school two miles distant from Osborne's, but continued boarding there, although there can be no doubt but that he could have procured board in the immediate vicinity of the school. While teaching at the last place referred to, Mrs. Osborne would take him to the school, or drive there for him. This she did several times. Mr. Osborne was then living at Manasquan, New Jersey. Soon after, he moved to New York city. Before going there, Mrs. Osborne promised Mr. Osborne that she would not see Stratton any more, but Stratton met them at Jersey City when on their way to New York; and it was not long before Mrs. Osborne took him to board with her in Forty-ninth street. He continued to board with her, most of the time, for years, and until the commencement of these proceedings; and, although the intimacy between Mrs. Osborne and Stratton was enough to prompt Mr. Osborne to commence these proceedings, yet the institution of this suit was not enough to drive Stratton away from her daily presence, nor to compel her to turn her back upon him. They visited Philadelphia together. Mrs. Osborne and her son and daughter went to Niagara, and Stratton went along. She spent some time at the Catskills, and Stratton was there with her. But, it is true, he paid his own bills. Mrs. Osborne was upon the witness stand, but she did not deny having committed adultery with Stratton. Stratton was called by her, nor did he deny having committed adultery with Mrs. Osborne. She says Stratton always conducted himself as a gentleman.
The defendant in her answer, by way of cross-bill, sets up recriminatory charges of cruelty and desertion; and upon the argument counsel said, if there must be a divorce, let it be on the ground of desertion, for the sake of the children. The court cannot do any such thing. I suppose every court would most gladly throw the mantle of oblivion over the faults of citizens, if, by so doing, justice could at the same time be done to the complaining party. I would not have made reference to this appeal did I not think that it involved a strong conviction on the part of counsel of the guilt of Mrs. Stratton.
(May 17, 1887.)
On motion to open final decree and the proofs, and to allow the defendant to give further testimony.
W. F. Abbott, for the motion. H. H. Wainright, contra.
Bird, V. C. The defendant presents her petition, and says that she intended to swear that she had not committed adultery with Stratton, nor with any one else, and thought she had so sworn until she read the conclusions of the court. She says it was an oversight. Her counsel says so too. They both swear to this. She desires permission to place her denial under oath upon the record.
To grant this petition would be going very far indeed. It would seem almost like encouraging carelessness, or allowing parties to experiment upon the testimony, with the assurance that whatever may appear to be wanting to make a case can be supplied. While these and other similar considerations have great force, and while it seems quite remarkable that the question of chiefest importance should have been entirely overlooked, I find myself constrainedto advise that the decree and proofs shall be opened, and that Mrs. Osborne be examined further on this one point. My chief reason for so advising is that the state—the public—is interested in the question involved, and interested in preserving the marital relations,—so much interested that all forms and technicalities should be brushed away in order to preserve the bond between husband and wife.
In a foreclosure case, the court has gone quite as far as this. In Sharp v. Wyckoff, 39 M. J. Eq. 95, the chancellor decided that, where the insufficiency of the proof respecting a tender is due to the inadvertence of counsel, a case may be ordered to stand over after final hearing for the purpose of supplying the additional proof. In that case the application was to re-examine the witnesses. See, also, Beckmaim v. Hoboken Bank for Savings, 37 N. J. Eq. 331, and Dunham v. Winans, 2 Paige, 24.