Hammerstein v. Hammerstein , 134 N.Y.S. 473 ( 1911 )

Gut; J.

This is a motion to confirm the report of a referee in a contested action for absolute divorce. The referee reported in favor of plaintiff. There 'was satisfactory proof of service. The pleadings admit there was no issue of the marriage. Plaintiff offered in evidence from the records of the board of.health, under objection and exception, a certificate of the' birth of the defendant’s child, which set forth that defendant and the alleged corespondent were its parents. Plaintiff also proved by the defendant’s attending physician during her confinement, and by the testimony of the manager of the sanatorium where she was ill, the fact of her confinement, the birth of a child and the payment of the attending physician’s fees, also sanatorium charges by the alleged corespondent. Proper objections were taken to all debatable testimony. . The attending physician, under protest throughout, testified that he obtained the information set forth in the birth certificate.as to the child’s paternity from the defendant. There was also an identification of the defendant by the- doctor as his patient. Defendant, though present at the hearing and contesting the case, offered no evidence. It was error to admit the birth certificate generally; whether it was admissible as hearsay evidence of pedigree is not now involved. See Maher v. Empire Life Ins. Co., 110 App. Div. 724, 727; see also Lee v. Sterling Silk Mfg. Co., 134 id. 124, 126, where a defective certificate of birth was held to be inadmissible as evidence of a child’s age where the vital issue was. whether it was under fourteen; Beglin v. Met. Life Ins. Co., 173 N. Y. 374, 376, where a death certificate was held to be inadmissible as evidence of the cause of death; Davis v. Supreme Lodge, 165 id. 159, 163, 170, where a death certificate was held to be inadmissible as proof of the cause of death; Buffalo L. T. & S. D. Co. v. K. T. &. M. M. Assn., 126 id. 450, 454-456. The issue here is adultery; the birth was a mere incident, though a material one. The physician’s testimony and that of the manager of the sanatorium,' that the defendant was their patient, that they attended her as such, as to how long such attendance continued, and the manager’s testimony that she went to the sanatorium without a child and took one away with her, and that the alleged corespondent with her knowledge made some of the arrangements and paid all the bills, were not privileged. Patten v. United L. & Accid. Assn., 133 N. Y. 450, 452-455; Jennings v. Supreme Council, 81 Appi Div. 77, 83-85; Becker v. Metropolitan Life Ins. Co., 99 id. 5, 8, 9; People v. Koerner, 154 N. Y. 355, 362-366; Griffiths v. Metropolitan St. R. Co., 171 id. 106, 109—111; Green v. Metropolitan St. R. Co., 171 id. 201; People v. Austin, 199 id. 447, 452. But the weight of authority compels me to hold that the birth certificate was inadmissible, and also the testimony as to what defendant was treated for and the nature of her ailment. Although none of the plaintiff’s testimony is contradicted, it would not be the proper course to disregard- the incompetent evidence and render judgment either way, without giving the parties an opportunity to be heard or to offer further or other proof if so advised. Robinson v. New York El. R. R. Co., 175 N. Y. 219, 221-225; Kelley Lumber Co. v. Otselic Valley R. R. Co., 136 App. Div. 146, 148; Gottlieb v. Dole, 109 id. 583, 585. The ease will be remitted to the referee, with instructions to rehear the parties and to make such new report as may be according to law and equity.

Ordered accordingly.