Emerson v. Emerson , 42 N.Y. St. Rep. 562 ( 1891 )

Dykman, J.

This is an action for a divorce on the ground of adultery, brought by the wife against her husband. The trial was before a judge without a jury, and he found the defendant guilty, and granted the plaintiff an absolute divorce. The defendant has appealed from the judgment, and insists here, as he did upon the trial, that the evidence was insufficient to establish his guilt. A careful examination of the testimony conducts the mind to a conviction of the guilt of the defendant. There is no positive proof of any act of adultery, but the circumstances and facts developed by the testimony all point in one direction, and they are entirely inconsistent with the innocence of the defendant. Innocent and virtuous men, who entertain a proper regard for their marital obligations, do not voluntarily place themselves in the equivocal positions occupied by this defendant. They do not associate with prostitutes, and give secret entertainment to women in the night-time, in their own rooms, in the absence of their wives; and when such conduct is proven it leads irresistibly to a conclusion of guilt. Men do not violate their marriage vows openly. They commit their wrongs with companions of their secret hours and partners in their guilt, and positive proof is not often obtainable. In such cases, as in all others, therefore, resort may be had to circumstantial evidence, which is sometimes quite as satisfactory as positive proof. A full and careful examination of all the testimony leads us to the conclusion reached by the trial judge, and the judgment should be affirmed, with costs.