Poppe v. Poppe ( 1956 )

In an action for separation the appeal is from a judgment entered after trial insofar as it dismisses the complaint on the merits. Judgment insofar as appealed from affirmed, without costs. No opinion. Murphy, Ughetta and Hallinan, JJ., concur; Nolan, P. J., and Wenzel, J., dissent and vote to reverse the judgment insofar as it dismisses the complaint and to grant a new trial, with the following memorandum: In our opinion it was error to receive in evidence respondent’s testimony as to a conversation between him and the appellant in which she is alleged to have admitted acts of adultery. It appears that such conversation and such admission were induced by the existing marital relationship between the parties and arose from it, and that, were it not for the relationship of husband and wife, such conversation and such admission would not have occurred. Such testimony, therefore, constitutes the disclosure of “ a confidential communication made by one [spouse] to the other during marriage ”, which is prohibited by section 349 of the Civil Practice Act (Warner v. Press Pub. Co., 132 N. Y. 181, 185-186; Hanor v. Housel, 128 App. Div. 801, 803-804).