Angevine v. Angevine , 1867 N.Y. App. Div. LEXIS 57 ( 1867 )

By the Court, Ingraham, J.

In this matter a motion is made to open the case and take testimony newly discovered since the trial before the surrogate.

I do not think we could order a new trial on such a ground solely, but as was done in the case of Caujolles, (9 Abb. 393,) such evidence might he received on this appeal and considered in connection with it, if necessary.

The material question arises as to the propriety of admitting as a witness Ann Angevine in her own behalf to prove the marriage. This was objected to and an exception taken.

Since the amendment of the 399th section of the Code making it applicable to surrogates’ courts and proceedings therein, it is immaterial whether she could have been a witness prior thereto or not. The application of that section to proceedings in surrogates’ courts, not only applied the provision allowing her examination, but also the restriction on such examination, so that if she came within that restriction she could not be examined in her own behalf against administrators, in respect to any transaction had with the deceased person. The term party to an action, which was used before the section was extended to proceedings in surrogates’ courts, must be construed as applicable to all proceedings, to which the first part of that section is made applicable.

"Upon the questions of fact in this case there is great room for doubt. The alleged marriage to a person under a fictitious name ; the admitted fact that such marriage was not consummated for five years thereafter, and that the parties then and not before cohabited together ; the fact of his always ■living apart from the respondent until his death, and the want of recognition on his part to his family; are strong circumstances to throw doubt on this transaction. And when there is connected with them, the newly discovered evidence that the deceased was absent from the city at the time of the alleged marriage, it seems that justice to all parties would be better subserved by submitting such a question to a jury.

I do not think a review of the evidence, or of the contradictions in it, at this time advisable. If a new trial' is to be had before a jury, such trial had better take place without any expression of opinion by the court as to many matters appearing in the testimony.

[New York General Term, April 1, 1867.

For the reasons above mentioned, as well as for the admission of the respondent as a- witness to prove ■ the marriage, I am of the opinion that the decree of the surrogate should be reversed, and a new trial ordered at the circuit, costs to abide the event.

Leonard, Smith and Ingraham, Justices.]