Opinion
10-24-1896
KASTENDIEK v. KASTENDIEK.
William D. Daly, for petitioner. James F. Minturn, for defendant.
Petition by Ella Kastendiek against John C. Kastendiek for divorce. Decree for plaintiff.
William D. Daly, for petitioner. James F. Minturn, for defendant.
GREY, V. C. The petition in this cause is filed by Ella Kastendiek against her husband, John C. Kastendiek, for divorce a vinculo matrimonii, alleging as a cause for divorce the adultery of her husband, at the Palace Hotel, in the city of New York, on the 29th day of November, 1895, with a woman whose name is unknown to the petitioner. The jurisdictional facts were sufficiently proved, and were not controverted. The only matter in dispute was the act of adultery. The petitioner proved by the testimony of two witnesses, who were not shown to be in any way interested, that on the day and at the place named in the petition (the Palace Hotel) the defendant was present with one of the two witnesses and two women, one of whom he had previously several times seen, though her name was not disclosed. The defendant's presence at the hotel was the result of a prearrangement made by him with one of the witnesses that he and the witness should meet these two women, and go over to New York, with the purpose and expectation on the part of the defendant that he would commit adultery with one of them before they separated. In accordance with this preconcerted plan the parties met, and proceeded to the hotel. They registered at the hotel, the defendant registering under a false name,—as "Mr. Kerker and wife." Of the two women, the defendant associated himself with that one whom he had previously several times seen. These two went into a separate bedchamber, and the defendant took off his coat and vest. Up to this point there is no contradiction in the testimony whatever, the defendant himself going upon the stand and admitting the truth of the facts above stated. The defendant, however, claimed that, although he did all of the acts above narrated, and took his coat and vest off while in the bedroom with this woman, because he "had an intention of staying," yet that he was in the room with this woman for only 12 or 15 minutes, and that during that time he committed no act of adultery. The man with whom he went to the hotel states that a period of half an hour intervened after the defendant and the woman went into the bedroom and before they came out, and the testimony of another witness would indicate that a period of half an hour or more passed while the defendant and his associate were in the bedchamber.
Evidence of a character to prove adultery must, in most cases, be inferential; but where the proofs show a disposition on the part ofthe defendant to perpetrate the offense, and a planning by him for that object, and also show an opportunity afforded him to accomplish his purpose, and all the surrounding circumstances indicate that he did commit the crime, the denial being limited solely to his own unsupported oath, the inferences to be drawn are sufficiently strong to justify a decree. I am unable to believe the uncorroborated testimony of the defendant, Kastendiek, in denial only of the very act of adultery, when the evidence shows that he had an adulterous purpose, and a prearranged plan, an opportunity and time enough to consummate that purpose, and surrounding circumstances which compel the inference that he did perpetrate the crime. By the petition he was notified of the day and the place when and where the offense is alleged to have been committed. By his answer he expressly denies the commission of this offense, and he personally appears in court with full knowledge of the grounds upon which a decree in this case would be claimed. He had, therefore, every opportunity to prepare his defense, and I am bound to believe that he was advised that his unsupported oath, in a matter where corroboration would be easy, would carry little weight with the court. He admitted that he knew who the woman was with whom he associated himself, as above stated, and that he had made no effort to produce her as a witness before the court. Had she been produced, her denial might have supported his testimony. He admitted that he had familiarly visited the hotel in question, and he said that one of the waiters came to the door of the room, offering wine, at the critical moment when the crime must have been committed, and that he went to the door of the room, and opened it for this waiter; so that the waiter was a material witness to show what was the condition of things as they appeared at that moment, but he made no effort to produce this witness before the court in support of his account of the transactions there passing. For these reasons I feel constrained to hold that the petitioner has maintained her cause, and I shall therefore advise that a decree a vinculo be made in accordance with the prayer of the petition, with costs.