Admissibility of Evidence - Privilege - Confessions and Admissions - Action Founded Upon Adultery.
In an action for a divorce founded upon adultery, a confession by the defendant to third parties is admissible on the issue of adultery. [1] Such testimony is not incompetent under Civil Practice Law and Rules 4502 which precludes spouses from testifying against each other as to a charge of adultery. [2]
A confession by the defendant that he is the father of a child born by another woman is competent.[3] An admission by the defendant to the plaintiff's mother that he had committed adultery is competent evidence. [4] However, the testimony of a defendant wife as to non-access to the plaintiff husband is incompetent on the issue of adultery.[5]
It is proper for a court to refuse to permit a wife to identify her husband's handwriting in a letter to her in which he confesses his adultery.[6] However, where such a letter is produced in court by a third party, he may identify it and testify about it, even though the letter was obtained from the wife.[7] A wife is not permitted to testify to the oral confessions of her husband about his adultery.[8]
[1] Monypeny v Monypeny (1916) 171 App Div 134, 157 NYS 11. In a husband's divorce action grounded on adultery, the wife's admission to him that she was pregnant but the child was not his, was admissible as evidence. J. v J. (1962) 35 Misc 2d 243, 228 NYS2d 950.
[2] Rivett v Rivett (1946) 270 App Div 878, 61 NYS2d 7.
[3] Barbara v Barbara (1945, Sup) 57 NYS2d 156.
[4] Lake v Lake (1946, Sup) 60 NYS2d 105.
[5] Benti v Benti (1946, Sup) 62 NYS2d 239.
[6] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32.
[7] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32.
[8] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32.
In an action for a divorce founded upon adultery, a confession by the defendant to third parties is admissible on the issue of adultery. [1] Such testimony is not incompetent under Civil Practice Law and Rules 4502 which precludes spouses from testifying against each other as to a charge of adultery. [2]
A confession by the defendant that he is the father of a child born by another woman is competent.[3] An admission by the defendant to the plaintiff's mother that he had committed adultery is competent evidence. [4] However, the testimony of a defendant wife as to non-access to the plaintiff husband is incompetent on the issue of adultery.[5]
It is proper for a court to refuse to permit a wife to identify her husband's handwriting in a letter to her in which he confesses his adultery.[6] However, where such a letter is produced in court by a third party, he may identify it and testify about it, even though the letter was obtained from the wife.[7] A wife is not permitted to testify to the oral confessions of her husband about his adultery.[8]
[1] Monypeny v Monypeny (1916) 171 App Div 134, 157 NYS 11. In a husband's divorce action grounded on adultery, the wife's admission to him that she was pregnant but the child was not his, was admissible as evidence. J. v J. (1962) 35 Misc 2d 243, 228 NYS2d 950.
[2] Rivett v Rivett (1946) 270 App Div 878, 61 NYS2d 7.
[3] Barbara v Barbara (1945, Sup) 57 NYS2d 156.
[4] Lake v Lake (1946, Sup) 60 NYS2d 105.
[5] Benti v Benti (1946, Sup) 62 NYS2d 239.
[6] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32.
[7] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32.
[8] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32.
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.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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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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