White v. White

Full title: WHITE v. WHITE.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Sep 20, 1902

64 N.J. Eq. 84 (Ch. Div. 1902)

64 N.J. Eq. 84

Opinion

09-20-1902

WHITE v. WHITE.

R. S. Hudspeth, for petitioner. Z. M. Ward, for defendant.

PITNEY, V. C.

Petition for divorce by George Wallace White against Annie Mae White, and cross-petition by defendant. Pinal hearing on pleadings and proof. Relief denied both parties.

R. S. Hudspeth, for petitioner.

Z. M. Ward, for defendant.

PITNEY, V. C. The petitioner, George Wal lace White, by his petition charges his wife,Annie Mae White, the defendant, with adultery with one Edward Zinke, and prays for a divorce by reason thereof. The defendant, by her answer, denies the adultery, and by way of defense and in a cross-petition charges her husband with adultery with a Mrs. Julia Eaton, and prays for a divorce on her part from her husband. By two several amendments, which she was allowed to make, the defendant further charges her husband with adultery with an unknown woman at a roadside tavern, and also with adultery with a certain Mrs. B. at a time and place named. The petitioner, by replication, denies each of these charges. Evidence was adduced on seven nonconsecutive days between the 25th of June, 1901, and the 21st of April, 1902, inclusive. The evidence is voluminous, and contradictory to a painful extent, showing clearly an unusual amount of perjury on one side or the other, and almost certainly on both. The evidence adduced on each side in support of the charges made is ample to support them, if believed; and the denials and contradictions on each side are ample, if believed, to refute the charges.

I might content myself with stating the effect upon my mind—first of listening to the evidence with care; second, of elaborate and able arguments on each side; and, third, of a careful perusal of the evidence as transcribed. But the standing of the parties in the community, and the importance to each of the result to which I feel myself constrained to come, and the very able manner in which the questions have been discussed by counsel, induce me to give my reasons at length. The petitioner is, I believe, the only child of his pareuts, who seem to have lived for the greater part of their lifetime in the city of Faterson, and the father seems to have acquired considerable wealth. The petitioner is a well educated man, a practicing physician, and it is said has a large practice. The defendant's maiden name was Wheatley. She is a native of New York, a daughter of a scenic artist, who died during her infancy, and left her to the care of her mother, who has resided for many years in Paterson, where the defendant seems to have been reared. The parties were secretly married while living at Paterson on the 17th of October, 1891. Some time thereafter the petitioner, who was desirous of establishing himself in the practice of medicine, moved with his parents to West Hoboken, and took his wife with him. His father became the owner of a dwelling on the corner of

Palisade avenue and——street, the front of the first floor of which was used as a drug store. The petitioner opened his suite of offices on the same floor, in the rear of the drug store, with a door opening on the side street. The father and mother occupied the first floor above for their residence, and the petitioner and his wife occupied the second floor above for theirs. One child, a son, was born to them in the year 1896. This mode of living continued until the parties separated in

January, 1901. The suit was commenced on the 30th of November, 1900, and the parties had occupied separate apartments for some time previous to that date, and in January, 1901, the wife withdrew herself to her mother's house at Paterson, where she has continued to reside ever since. The parties are both young, of a suitable comparative age, both possessing attractive personalities, and, if both had been faithful to their marriage vows, should have led a model married life.

Taking up now the case made by the petitioner against his wife. About the year 1895 or 1896 the alleged paramour of the wife, Edward Zinke, came to work as a boy in the drug store below the living apartments of the parties. He was then only 16 or 17 years of age, and at the time the defendant is alleged to have committed adultery with him,—1899 and 1900,—was between 18 and 19 years of age. The evidence on the part of the petitioner tends to show that the wife took a fancy to this lad; that she was seen by several witnesses at different times fondling him in the part of the drug store called the "Prescription Department," behind a solid screen, and also in her husband's office, in his absence. It further appears by the proofs that she frequently sent for him during the day and evening, while her husband was making his professional visits, to come to her apartments on the upper floor. This is proved by the female servants who were in the employ of the parties hereto—first, a colored woman named Mrs. Brown; and, second, a Mrs. Hightman, who at the time in question was a single woman named King, and subsequently married the petitioner's coachman. Both these females swear that they had known the defendant in the daytime, when in a state of entire undress, lying on her bed in her bedroom, to send for Zinke to come upstairs on some errand, and have him come into the bedroom, sit by her, and place his hand upon her chest, and on one occasion lie on the bed beside her, and that they there indulged in hugging and kissing. This, if the evidence is to be believed, was actually seen by the witnesses. They were also seen in the same position in the evening, and on one occasion, after the parties had been so in the defendant's room together in the evening, the witness Mrs. Hightman found under the bed two soiled towels, in a condition indicating clearly the use to which they had been put. She swears that she called the attention of the defendant to the condition of these towels, and the defendant gave a reason therefor. Charles Hightman, the coachman, testified to seeing acts of familiarity between the defendant and Zinke, both in the rear of the drug store and in the living apartments above. In addition to the evidence of these servants, there is the evidence of one Land, a private watchman, to the effect that he on more than one occasion had seen the defendant and Zinke embrace each other behind the prescription counter, and in the doctor's office. In the rear thereof. To the sameeffectis the evidence of Charles Lauchenard, another boy who worked in the drug store. Also Fred Hellstern, a person who frequented the drug store, testifies to the same effect. Finally, the attention of the proprietor of the drug store, Mr. Weisman, was called to the unseemly intimacy between Zinke and the defendant, and on February 21 or 22, 1900, he swears he discharged Zinke, and that he did so because of the intimacy which he himself observed between the defendant and Zinke, supplemented by what he heard from others. Both the defendant and Zinke swear that just before Zinke left in February, 1900, the petitioner accused her of undue intimacy with Zinke, and that he called Zinke into the room, and charged him with it in defendant's presence, and that both denied any undue intimacy; that the defendant advised Zinke's mother to withdraw him from work in the drug store, and that he voluntarily withdrew, and was not discharged. Next we have the evidence of a Mrs. Young, who was a distant relative of the petitioner, and lived with her husband in West Hoboken, and to whom the defendant made, as testified by Mrs. Young, confidential disclosures. Defendant told her —so she swears—that she was fond of young Zinke, that she loved him, and that she preferred him to her husband. She admitted to Mrs. Young that she had gone with him to the Hotel Vendome, New York, and had had a good time. Mrs. Young further swears that clandestine correspondence between the defendant and Zinke was carried on at her house by means of letters written to the defendant by Zinke, dropped in the post office, and directed to her at Mrs. Young's house, and then forwarded or delivered by Mrs. Young to the defendant. One of these letters from Zinke, which defendant opened at her house, she read, tore up, and left the pieces where Mrs. Young was able to gather them together so as to read the whole letter; and she swears that the contents indicated improper relations between the parties. This letter was not produced, because, as Mrs. Young swears, it had been destroyed. She also swears that defendant opened and read some of Zinke's letters in her presence, and permitted her to see the contents, and that they contained expressions of endearment. Further, the carrying of letters between the defendant and Mrs. Young's house was sworn to by the defendant's domestic, May Lukeman. The delivery of letters at Mrs. Young's house, addressed to the defendant, was also proven by the postman. It is further proven by the postmaster that the defendant rented, in her own name, a private box, No. 64, at the post office, where she had letters delivered to her. Mrs. Young further testifies that she personally knew Zinke to meet the defendant on the ferryboat, and cross with her to New York on two occasions. Mrs. Young further swears that on one occasion she happened to meet Zinke and the defendant in a street car going up Broadway in New York; that they both alighted at Fortieth street; that she alighted also, and followed them to the Hotel Vendome, at Forty-First street and Broadway; saw them enter the hotel together; that she waited outside a considerable length of time, and did not see them emerge. Further evidence on the topic of the alleged visits to the hotel is given by three colored men, two of them hall porters, and one an elevator boy, in the Hotel Vendome, who were produced by petitioner, and all testified that they had seen Zinke and the defendant together in the hotel; that they had seen them come in together, and had seen Zinke register names, and one swore that on one occasion he looked on the book and saw the name West and wife; and the elevator boy said that he "roomed" them,—that is, had taken them to the room assigned to them. Then there is the evidence of a Mrs. Godfrey that she lived in one of the upper floors of a small flat house in Hoboken, and that on the floor beneath her lived a Mr. and Mrs. Cook; that Mrs. Cook (first name Jennie) consulted her as to the propriety of permitting the defendant herein, with whom she was acquainted, to meet a man in her rooms, and that on one occasion, of an afternoon, in April, 1900, when such meeting took place, she was called downstairs by Mrs. Cook, and that the witness and Mrs. Cook each in succession looked through the keyhole of the front room, and saw the defendant and Zinke embracing each other. Her evidence is supported by that of her two children, who saw Zinke going in the house, and one of them was requested by Zinke, whom he recognized in court, to mind his bicycle while he was in the house, which he did for about two hours, and the other, a girl, was sent by the defendant with money to buy a bottle of whisky, which she did, and returned and gave it to the defendant. The suspicions of the petitioner were aroused in the winter of 1900, and he set a watch upon his wife, with the result that she was found on the street in the evening of November 17, 1900, with Zinke, who lived all the while with his parents in Hoboken, and was followed with Zinke to his mother's house, and a scene occurred there, which I deem it not important to enlarge upon. On the day of this meeting, November 17, 1900, and before the occurrence just mentioned, among the letters which were brought in the ordinary course of affairs to the petitioner's office, was an envelope addressed to the defendant in her own handwriting, at the box No. 64, which the petitioner opened, and found to contain a long letter from Zinke, admitted to be in his handwriting, and to have been mailed by him in the envelope furnished for that purpose by the defendant. That letter, so far as Zinke goes, is entirely inconsistent with proper relations between him and the defendant. The explanation of this letter and of the other correspondence given by defendant is that Zinke was employed by her to obtain evidence of misconduct on the part of her husband; that, in short, he was acting asa detective for her; and a letter was introduced by the defendant, addressed to her by Zinke, which she and Zinke swear was the letter to which Zinke's letter to her before mentioned was an answer. I stop to make these two observations about it:—First, that there is no evidence, other than the testimony of Zinke and the defendant, that the letter of defendant to Zinke was written at the time they swear it was written; and, second, that the incriminating letter is in no sense an answer to it. Another explanation is that Zinke, knowing that petitioner was suspicious of himself and the defendant, wrote this letter with a view of having it fall into the petitioner's hands for the purpose of angering him. This excuse, considered in the light of all the attending circumstances, is worse than none.

In estimating the value of this and all the evidence, standing by itself, and disconnected from the denials and explanations which I will notice further on, it is proper to say that circumstances arose in the course of the production of the evidence in this cause which constrains me to look upon all of that produced against the defendant with much distrust, and subject it to severe criticism. Those circumstances are the following: On the 13th of January, 1902, in the course of the examination of a witness produced by the defendant, it appeared that the petitioner had used money to hire a person in attendance before the court, whose evidence it was supposed would tend to prove the charges against the petitioner, to absent himself from the court, or, if he was called to the stand, to know nothing. This matter coming to the attention of the court, I immediately instituted proceedings to investigate it, and called upon the petitioner to show cause at a future day why he should not be adjudged guilty of contempt of the court. The proceedings so instituted resulted in the taking of considerable evidence, which satisfied me that both the petitioner and his alleged paramour, Mrs. Eaton, had been guilty of tampering with the witness in the manner stated, and also that two or three employés of the petitioner had likewise been guilty, with the result that they were all adjudged guilty, and all the parties fined,—the petitioner and one of his employés in a large sum. It further appeared in the progress of the cause that the petitioner was possessed of pecuniary means, which enabled him to expend money freely in procuring evidence both to sustain his own view of the case and to combat that of the other side. I was entirely satisfied in that proceeding for contempt that both the petitioner and Mrs. Eaton had deliberately falsified. On the other hand, while the defendant has enjoyed but a comparatively small alimony pendente lite, and her counsel has received a very moderate counsel fee, and she, so far as appears, is not possessed of any pecuniary means, yet she seems to have friends, and to have been able to procure evidence and witnesses to support her view of the case; and two apparently respectable females, who were called by her to assist in proving an alibi on one of the days on which the evidence tended to show that she had been guilty of adultery with Zinke, were shown to have falsified, and after the evidence showing the falsity of their testimony had been taken, they felt constrained to admit that they had been mistaken. I am, however, unable to see how they could have been mistaken. I mention this now to show that the evidence on both sides must be scanned with great care, but I feel constrained to say that that produced on the part of the petitioner deserves the more severe scrutiny.

Now, coming to the denials and explanations of the defendant. She denies each and every allegation of the petition, and so does Mr. Zinke. She makes somewhat of an attack upon the character for truth and veracity of Mrs. Hightman, her house servant. But I think it fails. She denies all the conversations with Mrs. Young. She admits part of the clandestine correspondence,—in all two letters; says it was carried on with Mr. Zinke for the purpose of discovering the wrongdoing of her husband. But in view of the testimony of both these parties as to the infrequency of their interviews, and the paucity of the correspondence between them, it is difficult to imagine how his services as a detective could have been of much value to her. She denies that she had ever been at the Hotel Vendome. In addition to that denial, depositions were taken in New York of Mr. Hatterman and one of his clerks, the proprietor of the drug store where Zinke was employed in the summer of 1900, and of one of the proprietors of the Hotel Vendome, which tend somewhat to render the stories of the colored hall boys improbable. It appears by the evidence of Mr. Hatterman's drug clerk that Mr. Zinke was employed in the drug store at 795 Columbus avenue, New York City, during the months of May, June, July, and August, 1900. The clerk is quite positive as to the months and length of time. Mr. Hatterman seems to think it was much longer, and that Zinke's employment commenced in the latter part of the year 1899, in which he is clearly mistaken. It appears that Zinke's attendance was required every day in the week except Thursday, which was his day off; it being the custom of the trade to allow a clerk one day off in each week; and I infer, though it does not distinctly appear, that he occasionally had a Sunday off, and it is proven by the employer and the clerk that he was regular in his attendance. It does not appear affirmatively that he did not and might not occasionally exchange his day with the other clerk, whose day off was Wednesday. Now the register books of the hotel were produced before the master in New York, and from those it appears that Mr. and Mrs. F. E. West registered on the following days: Thursday, April 12, 1900; Wednesday, April 25, 1900; Friday, May 4, 1900; Thursday, May 17, 1900; Thursday, May 24, 1900; Friday, June 8, 1900; Wednesday, June 27,1900; Monday, July 2, 1900; Sunday, July 8, 1900; Wednesday, July 25, 1900; Monday, July 30, 1900; Monday, August G, 1900; Thursday, August 16, 1900; Thursday, August 23, 1900, Mrs. and Mr. West; Wednesday, August 29, 1900. Against some of these entries the word "Noton," or "Noroton, Conn.," is written, to Indicate the residence, but I infer from the evidence that it was not easy to decipher, for one of the clerks in the hotel in his examination swears that he himself could not make it out. The evidence of the New York drug clerk was to the effect that those entries were not in Mr. Zinke's handwriting, with which he said he was somewhat familiar. I place little confidence in that evidence, because it is not probable that Mr. Zinke would have failed to somewhat disguise his handwriting if he made the entry. Besides, specimens of his handwriting in letters produced show a writing without much settled style. He sometimes, as he swears, writes back hand, and sometimes the ordinary slanting hand. In addition to that is the evidence of a clerk in the hotel, who attended more or less during the day (his time was divided with another) to the reception of guests. He says that he did not see all the guests register, and he swears that he does not recollect ever seeing the defendant and Mr. Zinke, or either of them, at the hotel. Pressed with regard to the entry of "Mrs. and Mr. West," he declared, in substance, that he did not know who made them; that he did know a Mr. West who frequented the hotel, and that Mr. Zinke was not the man. He swore that the hotel had upwards of 180 rooms, and that it did a very large transient business; said he thought the entry of August 23, 1900, was made in his presence, because apparently he was on duty at the time. Then he swears in this wise: "The party I know frequenting the hotel by the name of West is the party who made the entry of August 23d, 'Mrs. and Mr. West,' to the best of my knowledge." Then, on cross-examination, he said: "I do not know whether these parties' ('Mrs. and Mr. West') entry of August 23, 1900, Room 129, are Mr. and Mrs. F. E. West. I can't read their residence on the register. I do not know their residence, address or business. I am not acquainted with them, nor know where they come from. I do not know whether they are man and wife." Then shown entry of Mr. and Mrs. F. E. West, June 8, 1900, Room 291, he said: "I should judge they were the same parties. I do not know them, and cannot describe them. I can't make out the address from the book. I don't know their business or residence, and I can't say whether they are man and wife." Then he was asked this question: "Q. How do you know these Wests in view of your testimony? A. I know a man who frequents the house of the name of West, and when he registers I recognize him. I got his name from his registering, and that's all I know about him." He further says that Mr. Zinke and Mrs. White might have been in the hotel, and registered as man and wife, without his knowledge, under some fictitious name. I did not have an opportunity to see the book or these witnesses. I cannot value their evidence with as much accuracy as I can that of the three colored men, whose appearance and bearing on the stand was of the very best.

But the defendant goes further and sets up an alibi with regard to the charge of August 23d. She swears that on the morning of that day she went to Paterson, and met her mother at the station there, and with her went to visit some ladies at the village of Waldwick, in the northern part of New Jersey, and returned at night. In that she is supported by her mother and the two ladies who live in Waldwick, and who are the same persons that I have previously stated were substantially convicted by the uncontradicted evidence of other witnesses, and then by their own admissions, of giving false testimony in order to fix the date (August 23d) of the visit. But she is further supported by the evidence of a Mrs. Welcher, apparently a respectable married woman of Paterson, who swears that on the 23d of August she was passing near the railway station in Paterson, and there saw the defendant about to go with her mother to Waldwick. She fixes the date by the fact that she was that day moving from one house to another in the city of Paterson. That she did move about that time is undisputed: but a whole day's time was occupied in hearing the evidence of witnesses to prove that she moved on the 22d, and not on the 23d, of August. The result of the evidence, in my judgment, is to show that she moved partly on the 22d and partly on the 23d. So that, without convicting Mrs. Welcher of any willful or intentional prevarication, it is quite in accord with the facts to believe that the day on which she saw the defendant at the Paterson station was the 22d of August, and not the 23d. I place no confidence whatever in the evidence of Mrs. Wheatley or the other two ladies, who fix the date of the visit as of the 23d.

The evidence of the hotel clerk fails to satisfy me that the entries in the book of Mrs. and Mr. West on the 23d of August might not have been made by Mr. Zinke. But, after all, the case against the defendant, as to that date, rests upon the evidence of Mrs. Young and the three colored men, who belonged to the hotel. If either of those are reliable, the case, as to that date, is made out.

Now let us see what is the result of disbelieving Mrs. Young's evidence. The 23d of August did come on Thursday, and that was Mr. Zinke's day off from the drug store. Now, if Mrs. Young is not reliable in that respect, I am driven to the conclusion that the whole of her and the colored men's story in that regard is manufactured out of the solid; and in order to manufacture that story the petitioner, or some one in his behalf, must have ascertalned that Mr. Zinke's day off was a Thursday,must have either gone through the registers of all the numerous hotels in New York where it is well known this sort of thing is done daily, or else have picked out at random the Hotel Vendome, and, going through the register of guests, have discovered a "Mr. and Mrs. West" registering there on the various days which I have already given, and chosen that Thursday, the 23d of August, and the name Mr. and Mrs. West, as the date and name which the false story to be framed should be fitted to; and he would have done it at the risk of being detected by the appearance of the real Mr. and Mrs. West. Now I feel constrained to say that I think it very unlikely that the petitioner and Mrs. Young would have conspired together to foist upon, the court a story such as I have indicated. The risk of detection would have been too great. Not only must the petitioner have induced Mrs. Young to perjure herself, but he must have also bribed the colored men to do the same, and all in the face of the risk just mentioned.

I have scanned the evidence of alibi, and that offered to contradict Mrs. Young, with great care, because she appeared to be a staunch friend of the petitioner, and to be considerably under his influence, and I feel constrained to the conclusion that the weight of the evidence is in favor of the truth of her story.

Now with regard to meeting Zinke in the rooms of Mrs. Jennie Cook, as testified to by Mw. Godfrey. Mrs. Godfrey gave her evidence on the 25th of June, 1901. On that day the defendant was represented by her solicitor, Mr. Gilman, and by Mr: Henry S. White as counsel. Mrs. Cook, as I have said, lived with her husband in a flat in the same house as Mrs. Godfrey, at 1016 Willow avenue, Hoboken, and continued to reside there up to the time of the closing of the evidence on the 21st of April, 1902. Mrs. Godfrey in the meantime had moved to another house. On September 14, 1901, pursuant to an order of a master in chancery and a notice served two days previously for that day, and upon the affidavit of the defendant that Mrs. Cook was about to leave the state, her deposition was taken before the master. Owing to the shortness of notice, the regular counsel for the petitioner was unable to attend, and reliance was had upon a clerk to oppose the examination and cross-examine her. Her testimony was to the effect that she had known both the petitioner and the defendant for many years, and she remembered that in the spring of 1900, in the month of April or May, Mrs. White called to see her, and asked her if she would allow a detective to call and meet her at her house, as she (Mrs. White) would like to get some news from him about the doctor (petitioner), and that when she came she appeared to be in bad health, and the witness was obliged to give her something to strengthen her, and that she sent for brandy by one of Mrs. Godfrey's children, and that Mrs. White furnished the money for it; that a man came there that afternoon to meet Mrs-White; that Mrs. White opened the door to him at a moment when she, the witness, was not fully dressed; that she did not see the man, except the back of his head, when he went away; that she did not recognize him; that they met in the witness' parlor, and that the door leading into the hall was closed, but that the door leading into the back parlor was open, and that her husband was in that back parlor during the time that Mrs. White was in the parlor, and that she (the witness) was also part of the time in the back parlor; that the visit lasted about half an hour; that she saw Mrs. Godfrey on that day looking through the keyhole in the door from the hall to the parlor during Mrs. White's visit; that Mrs. Godfrey told her she could see nothing; that she was standing by Mrs. Godfrey when she told her this; and on cross-examination she stated that she, Mrs. Cook, also looked through the same keyhole. She went downstairs while they were there, on an errand to the cellar, and saw a bicycle in the hall, but saw none on the sidewalk. She did not see Mrs. Godfrey's boy when she went downstairs. She swore that Mrs. White called on her about that time several times. The significance of the testimony of Mrs. Cook that she saw but one bicycle is this: The son of Mrs. Godfrey swears that when he was asked by Zinke to mind his bicycle he himself was engaged in preparing for use a bicycle which he had borrowed; so that, according to the boy's testimony, there must have been two bicycles there, but he says that after waiting a couple of hours he himself was sent away on an errand, and did not see Zinke come out of the house. Here we have the evidence of both Mrs. Godfrey, called by the petitioner, and Mrs. Jennie Cook, called by the defendant, that she did meet a man in Mrs. Cook's rooms in April or May, 1900, and that both these witnesses looked through the keyhole at them as they sat in the parlor; and Mrs. Godfrey swears that the man was Mr. Zinke, and that they were hugging and kissing each other. He was also seen by young Godfrey, and recognized by him in court as Zinke. Mrs. Cook simply swears that he came there as a detective, and that she did not see his face. This evidence of Mrs. Cook was offered to be read on the 17th of April, 1902, and objection was made because Mrs. Cook was still in the state. The objection was sustained, and the process of the court was put at the service of both parties to produce her. They did not succeed, and on a subsequent day the objection was waived by counsel of the petitioner. No attempt was made to take the testimony of Mr. Cook, who, according to his wife, was in the house at the same time. Now, after the taking of the deposition (September 14, 1901) of Mrs. Jennie Cook on behalf of the defendant, to wit, on the 24th of December, 1901, the defendant was put on the stand. In the meantime her first counsel, Mr. White, haddied, and her solicitor, Mr. Gilman, had withdrawn from the case, and Colonel Ward of Paterson had taken their place, and she was examined as follows by Colonel Ward: "Q. You know a lady by the name of Mrs. Cook? A. I do. Q. Did you visit her house sometimes? A. I did. Q. Did Eddie Zinke ever come there to see you? A. He did not. Q. Were you ever in the parlor there with Eddie Zinke? A. I was not. Q. Did you ever sit in a chair there, hugging and kissing him, sitting on his lap in that house? A. I told you Eddie Zinke was never there; no." That is the only explanation she gives of that interview. She does not state what man did meet her there, nor make any attempt to produce him on the stand. As to Zinke, he swears positively—a most remarkable statement—that he never had any conversation or interview, except accidentally, at a doctor's office, with the defendant from the time he left the drug store in February, 1900, until the night of November 17, 1900, when the love letter was intercepted by the petitioner, and Zinke and the defendant were caught together by the petitioner in the street. I consider this statement remarkable, because he swears he was employed by the defendant to act as a detective on the movements of the petitioner.

Under these circumstances it does seem to me that the defendant entirely falls to meet the charge of being with Zinke for improper purposes in the rooms of Mrs. Jennie Cook. Whether any illicit intercourse actually took place between them on that afternoon in Mrs. Cook's rooms is a matter of small importance, since the fact of such a meeting, under such circumstances, is, of itself, sufficiently significant, in connection with the other circumstances in the case. According to the evidence of Mrs. Godfrey and her son, which I believe, there was ample time and opportunity for illicit intercourse.

Now, one other date given by Mrs. Young is the 5th of September, 1900, on which day she says she saw the defendant and Zinke together on a ferryboat on their way to New York. This is denied by both, and the defendant, by way of an alibi, swears that on that day she went to New York to visit her sister, Mrs. Gokey, a married woman living there, and that she spent the day and night with her; says she recollects it because it was her birthday. Her sister corroborates her. Both state that the defendant's plan in the first place was to go 1n the morning to New York and meet her sister, and then take a sail down the bay for her health, but that she deferred going until afternoon, and met her sister at the landing in New York of the Fourteenth street Hoboken Ferry. The cross-examination of both parties as to the movements of that day are quite unsatisfactory. But it was shown, and admitted by defendant, that the physician who attended her mother at defendant's birth returned the date thereof to the Bureau of Vital Statistics in New York, where she was born, as of August 5th, and not September 5th. The mother, Mrs. Wheatley, swears that he made a mistake. Moreover, the defendant swears that she had her child with her. The proof by the petitioner's mother is that the boy was left at home, and was there during the day and night of the 5th of September, and she further swears that when the defendant came home the next day she gave her as an excuse for staying all night that she had been taken violently sick in New York, and had been carried to the hospital in Fifty-Ninth street, and stayed there all night. The elder Mrs. White made a memorandum of this at the time. This, of course, is inconsistent with the defendant's account of her movements. I think the alibi as to the 5th of September is not made out and taking the unsatisfactory evidence of both the defendant and her sister, Mrs. Gokey, and the story which the defendant told her mother-in-law, I feel constrained to believe that she did meet Zinke on the ferryboat that day.

One or two other matters of defense set up by the defendant are worthy of notice. First, she calls a Mrs. Margaret Cook to prove an alibi. Mrs. Cook swears that about the 1st of July she went with the defendant to a summer resort on Long Island, and that she was continuously with her for two months, except about a week, when the defendant was visiting her mother at Paterson. A casual reading of this witness' evidence would indicate that the two months were spent on Long Island. But this is clearly a mistake, and the real time spent there was about three weeks, or a little more, in the month of July, and the witness says that during that time the defendant went once to New York; and the testimony of the defendant and other witnesses shows that she was in and around West Hoboken the whole of the month of August. Comparing her evidence with the dates of the visits of Mr. and Mrs. West at the Hotel Vendome shows that there was no necessary inconsistency. The other matter is an attempt on the part of the defendant to prove condonation on the part of her husband by swearing that he slept with her and had sexual intercourse with her the night of the 17th of November following the evening on which Zinke's letter to the defendant was intercepted by the petitioner, and he had the scene with her and Zinke in the street and in Zinke's house. She attempted, first to support her own evidence by the evidence of May Lukeman; but this witness, who was two or three times examined, entirely fails to sustain her, and the defendant is thoroughly contradicted by the petitioner's father and mother, and not to say by all the probabilities of the case. 1 am satisfied that the whole story is made up out of the solid. But if I believed that the petitioner had had sexual intercourse with her that night I should not consider itas a condonation, because it does not appear that at that time he knew the whole extent of her transgression with Zinke.

Taking all the evidence together, I am entirely satisfied that the case against the defendant is made out.

Now, as to the case made by the evidence against the petitioner. Sexual intercourse is alleged with three persons; one, a Mrs. B., supported by one witness. It is enough to say of this charge that it fails signally, but I am not prepared to say that it was not made in good faith.

The next charge of adultery is with an unknown woman at a roadside tavern in Hoboken, or its neighborhood. I was unable from the evidence to locate it, although to those who are familiar with the locality it was well known. This charge is sought to be established by the evidence of a Mr. Beekman, who was and is well acquainted with the petitioner. He was in the years 1896 and 1897 conductor of a trolley car, which was the only car running on a short branch or loop line from the main line on Jersey City Heights, and which occupied 12 minutes in making its round, in the course of which it passed this roadside tavern. Beekman swears that in 1890 and 1897 the petitioner frequently boarded his car at the same time as a woman whose name was unknown to him, and that both got off and entered the tavern together. Sometimes the woman would board the car alone, and get out at the tavern, and afterwards the petitioner would board the car at the same place on its next trip, and inquire of the conductor if the woman had appeared, and if so would proceed and get off at the tavern. The maneuver came to be fully understood between the witness and the petitioner, and is described by the witness with much circumstance and detail. The witness further swears that the petitioner asked him what he thought of the lady, and that he replied that he thought she was all right, and that the petitioner said that "it was better than what he had home; if it was not, he would not touch it." This witness was severely cross-examined, and an attempt made to show that he had some ill-feeling against the petitioner; and evidence was given on both sides as to the character of the house. On the one side, evidence was given tending to show that it was a place where assignations of this kind were frequently made, and on the other side the evidence tended to show quite the contrary. So far as the attempt by cross-examination to break the force of this witness' evidence is concerned, I think it was a decided failure. His manner on the stand was good, and tended to produce conviction. He is supported to a slight extent by the motorman of the car, who observed the petitioner getting off at the place in question, but seemed not to have much memory as to any particular woman getting off at the same time. With regard to this charge, I will content myself at present by saying that I see no reason to seriously doubt the evidence of Mr. Beekman.

I come now to the third charge, which is the one particularly relied upon by the defendant, and that is the charge of adultery with Mrs. Julia Eaton. This lady is a wife, with a daughter some 10 or 11 years old, who in 1899 and 1900 lived on the first floor of a house on Kossuth street, near the corner of Palisade avenue, West Hoboken. At first her husband lived with her, but during the period covered by the evidence he had left her. She had at one time supported herself in whole or in part by working in a silk mill, but during the period in question had little or no visible means of support. That the petitioner during that period was a frequent visitor at her apartments was an admitted fact in the case. He and she justified his visits on the ground of his profession. They said that Mrs. Eaton was an invalid, and required both medical and physical treatment. Significant evidence by credible witnesses as to the character of these visits is given,—first, by persons living in the immediate neighborhood, who, as shown by their testimony and a map of the surroundings, had ample opportunity to observe; next by certain women who visited Mrs. Eaton; and, third, by a Dr. Meyer, who swears to having seen an act of adultery. The witnesses in the neighborhood were mostly Germans of the laboring class, and I can see no reason to doubt their honesty and desire and intention to speak the truth.

The first one called was a Mrs. Miller, who lived in the same house on the floor above Mrs. Eaton. She swears that the petitioner was called in as a physician to see Mrs. Eaton when she first moved into the house, and when to the witness' observation she was evidently sick; but she swears that he continued his visits after she apparently got well. That he came frequently. That he on several occasions came in the evening as late as after 10 o'clock, and stayed until after 12 o'clock. That she on one occasion met him in the hall, as she went downstairs to put out the hall lamp, at a little after 10 o'clock. That he inquired if Mrs. Eaton was in. The witness afterwards heard him knock at Mrs. Eaton's door, and enter therein, and said that he went away that night about 12 o'clock. That she had seen Mrs. Eaton that day, and that she had been out walking in the afternoon, and that she could not see that she was sick. On another occasion, when the petitioner was visiting Mrs. Eaton in the afternoon, she heard them kissing each other in the hall below her apartments as he was going away, and that she looked out of her window, and saw the petitioner get in his carriage and drive away. Asked the general question whether she thought the petitioner stayed longer than a doctor oughtto stay, she said "Yes"; and asked as to how often he so stayed, she replied that she could not state, but that the whole street saw it. It is apparent from the evidence of this witness that the visits of the petitioner attracted the attention of the neighbors. Then there is some proof given by this witness as to letters being sent back and forth between Mrs. Eaton's house and the petitioner's office.

The next witness is a Mrs. Grenz, who lives on Palisade avenue, near the corner of Kossuth street, so that the rear of her house views the side of Mrs. Eaton's house; and I may say that that corner of Kossuth and Palisade avenue is less than a right angle. She states that she noticed the petitioner's visits there, and saw him go in so many times that she inquired who he was; that sometimes he would stay a short time, at times one hour, and at other times two hours; that she had seen him go in as late as 9 or 10 o'clock, and had seen him go out afterwards as late as 1 o'clock in the morning. She knew this because her children were sick, and she was up, and it being warm weather, she was out in the yard; and on one occasion she swears positively that about 1 o'clock in the morning she saw petitioner driving along in his carriage, and that Mrs. Eaton was in the carriage with him; saw them get out, and that they went into Mrs. Eaton's house by the rear. It is hardly necessary to remark that it was no part of the petitioner's professional duty to take his patient out riding in his private carriage at night, and at as late an hour as 1 o'clock in the morning.

The next witness is Robert Grenz, the husband of the previous witness. He testifies to seeing the petitioner come out of Mrs. Eaton's house once after midnight, and he knows of his coming to the house between 9 and 10 o'clock, and not going away until between 1 and 2 o'clock in the morning. He did not see Mrs. Eaton riding in the carriage with the petitioner, but his wife told him of the circumstance when she saw it.

The next witness is Mrs. Kuss, who lived in Kossuth street, opposite Mrs. Eaton's apartments, and she swears to frequent visits there by the petitioner.

Then there is the admitted fact that on one occasion Mrs. Eaton had a dancing party at night of some young ladies, who I understand were the acquaintances of her sister, who worked in a mill, and invited young gentlemen to meet them. The petitioner came there at the commencement of the dancing, and assisted Mrs. Eaton as a sort of host in entertaining her company until the last guest went away, at the usual late morning hour of 4 or 5 o'clock. Evidence was also given of acts of familiarity between the petitioner and Mrs. Eaton during the course of the amusements of that night; but, standing by itself, I place little reliance upon that evidence. The fact that he would leave his own family, and spend the whole night at Mrs. Eaton's in a festivity of that kind, shows an intimacy with her not attributable to the mere relation of physician and patient.

Then there is the evidence of Mrs. Gumble, a friend of Mrs. Eaton, who frequently visited her at her house during the period in question. She swears that she was very intimate with her; that the petitioner used to visit Mrs. Eaton once or twice a day, sometimes three times; that their manner toward each other was very familiar and affectionate, and on all occasions of his visits they had a private interview in the parlor, from which the witness was excluded, and that they stayed together there much longer than an ordinary physician's visit, and that Mrs. Eaton was not sick at the time; that part of the time he had a key of his own to the house, which he used at night, but not in the daytime. She swears that she had frequently seen them kiss and hug each other, and that she had seen him sit on the lounge beside her, and that on one occasion she saw him lift her skirt, and show her lower limbs, and ask. "Do you see what I am leaving home for?" That she saw him give Mrs. Eaton money three times, the first time $9, the next time $7, and the third time $15. She knew the amount, because Mrs. Eaton counted it to her after the petitioner had left. She said that Mrs. Eaton picked silk for a living at her house, the only occupants thereof being herself and her little girl. She says she heard the petitioner say that he thought more of Julia Eaton than he did of his wife. That was in the latter part of the year 1899, which was the last time she was in her house. She also swears that she knew of their riding out together in the carriage some time after the party; that this was in the evening, between 8 and 9 o'clock, in the fall of the year. She also swears to being at the party, and is one of the witnesses who testified to seeing the petitioner kiss and hug Mrs. Eaton that night, and that she reprimanded Mrs. Eaton for it, and that after supper Mrs. Eaton and the petitioner went into the bedroom, and lay down across the bed, and that she spoke to her and remonstrated with her about it. She swears that Mrs. Eaton went away with the petitioner into the country, and stayed some time. The value of the evidence of this witness is somewhat depreciated by the production of a letter written by her to Mrs. Eaton, showing a disposition inconsistent with that of a fair and impartial witness; but I cannot think that it is sufficient to show that there is not a solid foundation of truth in her story.

Another witness is a Miss Maggie Donnelly, a young lady who lives with Mrs. Gumble, and works in a fireworks factory. She, too, was at this party. She swears that she saw the petitioner kiss Mrs. Eaton that evening,and sit on her lap on the couch in the dining room for a few moments.

Evidence was given by other young ladies who were present at the party, and who saw nothing familiar between the petitioner and Mrs. Baton.

Another witness is a Mrs. Sawyer, who swears to having visited Mrs. Eaton, and that while she was there the petitioner called; that the witness was requested to leave the room, and that petitioner and Mrs. Eaton were in the parlor together about an hour; that there was a folding bed there, and that after the door was opened she was called in; that the petitioner remained and talked, and seemed to be very affectionate toward Mrs. Eaton; and later on, as I understand while the suit was in progress, she visited them at another house in Shipman street, to which Mrs. Eaton had moved, and there saw the same familiar and affectionate conduct between them, and that she called him sweetheart.

Then we have the evidence of Dr. Meyer. He was a physician practicing as a specialist in Hoboken, who seems to have managed to acquire his license first in New York, and then in New Jersey, while following other pursuits. For several years before the time in question, he was a friend and acquaintance of the petitioner, and on one or two occasions attended petitioner's patients for a day or two in his absence. He said that he was one day in the petitioner's office, and that petitioner was trying to induce him to attend to the petitioner's patients during a proposed prolonged absence on a vacation. That as he was about to enter the inner office a lady stepped out, and after she left he inquired who she was, and was informed by petitioner that she was Mrs. Eaton, and that she lived in Kossuth street, near Palisade avenue, and petitioner intimated to the witness that if he would take his practice while he was away he would give him an opportunity to enjoy the person of Mrs. Eaton during that period. The attention of the witness being thus called to the relation between the petitioner and Mrs. Eaton, he was one evening passing in the neighborhood of Kossuth street and saw the petitioner in his carriage turn out of Palisade avenue into Kossuth street. He then recollected what he had shortly before told him about Mrs. Eaton, and followed the carriage up to the corner, and then saw the carriage come back, and drive down Palisade avenue without the petitioner. At the same time he observed the petitioner turn, as if to go into a house. Then he walked down in front of the house into which he supposed the petitioner had entered, which he described as the first house on Kossuth street from the corner, and it is shown in the case that this house sets a little further back from the street than the house next to it, and was undoubtedly the one in which Mrs. Eaton lived. He saw no light in the house, and could see nothing by looking through the front window. Then he went down a narrow passage by the side of the house, and saw no light opening on the passage. Coming to the rear of the house, he found two windows opening from the rear, and a faint light coming out of one furthest from the alley. He stepped up a couple of steps to a platform, which brought lain near the window in which there was a light, found the curtain up a few inches, and, looking through, saw a woman undressed on a lounge, and saw the petitioner have sexual intercourse with her. Now, a plan of Mrs. Eaton's apartments was introduced in evidence, which shows that it was divided as follows: In front, and next to the little alleyway just mentioned, was a hall 5 feet wide, and beside it a single front room or parlor 15 feet wide. Behind the hall, and next to the alley, was a bedroom 7 1/2 feet wide, with a window in the rear, and by the side of that and rear of the parlor a dining room 12 1/2 feet wide, also with a window in the rear. In the rear of the dining room was an extension 10 feet wide, used for a kitchen, with an open recess or alcove in the corner next to the dining room and bedroom, out of which alcove an outside door opened into the kitchen, and upon which opened the single window from the dining room. A little stoop, covered, partly off this alcove and partly built out, was reached by three steps from the ground in the rear, and a person standing on that stoop, or on the steps which led to it, could look directly into the dining room through its single window, and it was through that window that the witness swears he saw the act of adultery committed upon the lounge in the dining room, and that there was a lounge there was an undisputed fact in the case. Dr. Meyer was severely cross-examined, and I have carefully examined his evidence, in connection with the plans and photographic elevations of the house which were produced, and I am entirely satisfied that the accoimt which he gave of the movements of the petitioner and of himself, and what he saw, were all perfectly feasible and natural. It must be remembered in this connection that Mrs. Eaton had a child 11 years old, who naturally would be sleeping with her in the bedroom, and the parties would avoid having sexual Intercourse in that room. Then the only window in the dining room opened over this little stoop in the rear, so that a light there woud not be seen from any other point except just where Dr. Meyer says he stood, and he says the shade was up far enough for him to see what he did see.

Criticism was made on his testimony as to the sequence of events from his first seeing the carriage turn into Kossuth avenue and the time spent in following the carriage, and catching a glimpse of the doctor as he appeared to enter the house, and of the carriage going away, and of the witness reachingthe rear of the house. But I am unable to find any serious flaw in that respect in his story. In fact, while a reading of small detached portions of his evidence might seem to the casual reader to indicate some slight contradictions or discrepancies, yet, taken as a whole, and carefully studied, I can find no serious discrepancy in it He does, indeed, say that he declined the petitioner's offer to have him take his practice, and, as he was just about to establish himself in practice, it struck me at the time that the reasons he gave for not accepting it were not entirely satisfactory; but upon a re-reading and a careful consideration of it, I am unable to say that that circumstance tends in the least to discredit the doctor as a witness.

Now, taking the evidence together, I am forced to the conclusion that the case is made out against the petitioner, and this in full view of the fact that the defendant, helpless woman as she is, has been able to induce witnesses to prevaricate upon the stand. But the witnesses whose evidence tends to prove the case against the petitioner are numerous. Many of them are disconnected with each other, so that it la impossible to believe there was a concert between all of them. Most of them were not subject to any particular influence that might be brought to bear upon them by the defendant Hence, I am unable to believe that it was possible for her to induce so many witnesses, having such variant, attitudes towards her and the case, to come on the stand, and deliberately perjure themselves. Or, to state it in another way, if the case rested on the evidence of one, or two, or three witnesses, and their evidence was not supported by other evidence, and was not consonant with the general trend of the whole evidence, I might believe that they were either mistaken or perjured; but where so many witnesses, differently situate, with diverse interests and connections, swear to so many facts, all looking in one direction, I find it impossible to escape the result.

The result is that I find both parties guilty, and can afford neither any relief. I come to this conclusion, so far as relates to the defendant, with regret. I should have been glad to acquit her, and give her relief against her husband. I say this because there is good reason to suspect, if not believe, that the petitioner persistently defrauded the defendant, by withholding from her and bestowing upon other women those ministrations of love which every husband owes wholly to his wife; and, if so, it was natural, though unlawful, for the defrauded wife to cast her affections upon this innocent boy, and seduce him, as I believe she did, to perform her husband's duties. Such a case naturally excites the sympathies of a judge toward the unfortunate female, and the books furnish instances where judges have permitted their sympathies to lead them from the plain path of judicial duty so far as to deliberately smother their real convictions, and delude themselves into a sort of belief that the evidence is insufficient to show the guilt of the wife. I am glad to say that few persons of intelligence and sound judgment approve this mode of administering justice, and I believe that most persons condemn it The striking picture, so graphically drawn by the masterly hand of Chancellor Zabriskie in Derby v. Derby, 21 N. J. Eq. 39, 40, of a delinquent husband taking "feeble hold" with "weakened, blanched, and attenuated hands upon the horns of the altar of justice," seems to me to be a distracting and dangerous object to have lodgment in the mind of the earnest, diligent, and honest seeker for the truth, tending, as I think it does, to produce dimness and obliquity of vision and erroneous results. Better far, in my judgment, to keep at all times in view the time-honored motto, "Let the truth prevail though the heavens fall." Conscious, as I am, that my judgment is convinced by the evidence in the cause that this defendant is guilty, my oath of office compels me so to declare, and let the law of the land fix the consequences.

The only question that remains is to determine what shall be done with the child, and what provision shall be made for his care and maintenance. Upon that I will hear counsel.