Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of New Spouse
In those never ending custody cases, where former spouses have remarried, visitation issues are sometimes complicated by the new spouse's role in the household as part-time caretaker for the children, or person who answers the telephone, chauffeur for the children, and even sometimes as a self-proclaimed spokesman for the former spouse. When the new spouse plays an active role in the visitation process contact between the former spouse and new spouse is inevitable and evidentiary problems may arise.
In those cases where evidence of interference with visitation by the new spouse is sought to be introduced, the out of court statements of the new spouse may be admissible under the spontaneous declaration, the state of mind or evidence of abuse or neglect exceptions. If not, it may be admissible as an admission of an agent. In order to introduce the evidence, a proper foundation must be laid. First, the agency must first be established and then it must be established that the new spouse, as an agent, had the authority to make the statement. An agency between husband and wife cannot be implied from the mere fact of marriage.[1] However, the actual agency may be implied from the conduct of the parties or established by proof of subsequent ratification.[2] As to third persons, the agency may arise by estoppel.[3] The marital relation is a circumstance which may be considered along with other facts and circumstances in determining whether a spouse is the agent of the other spouse.[4]The agent must have the authority to make such statements.[5] The authorization may be express, such as where the agent's job description includes the authority to speak for the principal or where the speaking authority may be drawn from circumstantial evidence. Thus, where a statement harmful to the defendant wife building owner was uttered by her husband, the "general foreman”, the Court of Appeals found that his authority as agent for his wife seemed to have been broad enough to include an admission of an employee's responsibility for placement of the skid receivable against the defendant. Though called merely "general foreman”, the husband was apparently the person in whom complete managerial responsibility for the enterprise was vested. Where an agent's responsibilities include making statements on his principal's behalf, the agent's statements within the scope of his authority are receivable against the principal.[6]
[1] Le Long v. Siebrecht, 196 App.Div. 74, 76, 187 N.Y.S. 150.
[2] Hyatt v. Clark, 118 N.Y. 563, 23 N.E. 891; Cutter v. Morris, 116 N.Y. 310, 22N.Y.S.2d 451; Prince, Richardson on Evidence, 10th Edition, 254.
[3] Hannon v. Siegel-Cooper Co., 167 N.Y. 244; Ring v. Long Island Real Estate Exchange & Investment Co., 93 App.Div.442, 87 N.Y.S. 682, affd. sub nom. Ring v. Howell, 184 N.Y. 553, 76 N.E. 1107.
[4] Wanamaker v. Weaver, 176 N.Y. 75.
[5] Loschiavo v. Port Authority of New York, 58 N.Y.2d 1040, 448 N.E.2d 1351 (1983) (“… the hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority.”)
[6] See, e.g., Stecher Lithographic Co. v. Inman, 175 N.Y. 124, 67 N.E. 213;see, also, Richardson on Evidence (Prince, 9th Ed.), p. 309.; Spett v. President Monroe Bldg. & Mfg. Corp., 19 N.Y.2d 203, 225 N.E.2d 527, 278 N.Y.S.2d 826 (1967).
In those never ending custody cases, where former spouses have remarried, visitation issues are sometimes complicated by the new spouse's role in the household as part-time caretaker for the children, or person who answers the telephone, chauffeur for the children, and even sometimes as a self-proclaimed spokesman for the former spouse. When the new spouse plays an active role in the visitation process contact between the former spouse and new spouse is inevitable and evidentiary problems may arise.
In those cases where evidence of interference with visitation by the new spouse is sought to be introduced, the out of court statements of the new spouse may be admissible under the spontaneous declaration, the state of mind or evidence of abuse or neglect exceptions. If not, it may be admissible as an admission of an agent. In order to introduce the evidence, a proper foundation must be laid. First, the agency must first be established and then it must be established that the new spouse, as an agent, had the authority to make the statement. An agency between husband and wife cannot be implied from the mere fact of marriage.[1] However, the actual agency may be implied from the conduct of the parties or established by proof of subsequent ratification.[2] As to third persons, the agency may arise by estoppel.[3] The marital relation is a circumstance which may be considered along with other facts and circumstances in determining whether a spouse is the agent of the other spouse.[4]The agent must have the authority to make such statements.[5] The authorization may be express, such as where the agent's job description includes the authority to speak for the principal or where the speaking authority may be drawn from circumstantial evidence. Thus, where a statement harmful to the defendant wife building owner was uttered by her husband, the "general foreman”, the Court of Appeals found that his authority as agent for his wife seemed to have been broad enough to include an admission of an employee's responsibility for placement of the skid receivable against the defendant. Though called merely "general foreman”, the husband was apparently the person in whom complete managerial responsibility for the enterprise was vested. Where an agent's responsibilities include making statements on his principal's behalf, the agent's statements within the scope of his authority are receivable against the principal.[6]
[1] Le Long v. Siebrecht, 196 App.Div. 74, 76, 187 N.Y.S. 150.
[2] Hyatt v. Clark, 118 N.Y. 563, 23 N.E. 891; Cutter v. Morris, 116 N.Y. 310, 22N.Y.S.2d 451; Prince, Richardson on Evidence, 10th Edition, 254.
[3] Hannon v. Siegel-Cooper Co., 167 N.Y. 244; Ring v. Long Island Real Estate Exchange & Investment Co., 93 App.Div.442, 87 N.Y.S. 682, affd. sub nom. Ring v. Howell, 184 N.Y. 553, 76 N.E. 1107.
[4] Wanamaker v. Weaver, 176 N.Y. 75.
[5] Loschiavo v. Port Authority of New York, 58 N.Y.2d 1040, 448 N.E.2d 1351 (1983) (“… the hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority.”)
[6] See, e.g., Stecher Lithographic Co. v. Inman, 175 N.Y. 124, 67 N.E. 213;see, also, Richardson on Evidence (Prince, 9th Ed.), p. 309.; Spett v. President Monroe Bldg. & Mfg. Corp., 19 N.Y.2d 203, 225 N.E.2d 527, 278 N.Y.S.2d 826 (1967).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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