Per Curiam.
¶1
The decree appealed from will be affirmed, for the reasons stated in the opinion delivered by Advisory Master Moore in the court of chancery.
¶2
For affirmance
— The Chiee-Justice, Trenchard, Parker, Lloyd, Case, Bodine, Donges, Heher, Yah Buskirk, Kays, Heteield, Dear, Wells, Dill, JJ. 14.
¶3
For reversal
— None.
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Case posture Posture On appeal from a decree of the court of chancery advised by Advisory Master Moore, who filed the following memorandum:
The petition for divorce was filed on February 16th, 1932, alleging that the defendant had committed adultery on the 30th day of January, 1932, and on the 6th and 12th days of February, 1932. The petitioner alleges that acts of adultery were committed by the defendant with one Mrs. Katherine Mick, in an automobile parked on the side of an isolated road known as Midland avenue, in Oradell, in the county of Bergen, and State of New Jersey. The petitioner also alleges that adultery was committed on the 12th day of February, 1932, with the same woman, in an automobile parked on Sixteenth avenue, between Madison avenue and East Eighteenth street, in the city of Paterson, county of Passaic, and State of New Jersey.
The answer denies the alleged acts of adultery.
The petitioner and defendant were married on July 3d 1901, as alleged in said petition.
In my opinion, the petitioner has established by credible and competent testimony the essential allegations recited in the petition and is entitled to the relief prayed for.
Miss Norma Kopp, a special investigator, hired by the petitioner, and her chauffeur, Paul Gatti, two witnesses produced on behalf of the petitioner, testified that they had observed the defendant and Mrs. Mick kiss and hold each other in very close embrace for long periods of time on the occasion, and at the places stated.
The testimony of paid detectives, while competent, is not given the same degree of credit as that of disinterested witnesses, but if such testimony is corroborated, it is to be considered.
Partial corroboration is had from the fact that when accused of adultery the defendant failed to deny it. An undenied statement made in the presence of the other party is an admission against such other party. Ollert v. Ziebell, 96 N.J. Law 210 ; Boyles v. McEawen, 3 N.J. Law *677.
The defendant, in his testimony, admits that he was alone with Mrs. Mick, and that they were parked in an automobile at the places alleged on the occasions in question. The defendant accounts for their presence at these places by stating that they wanted to have a drink and discuss the events of the day in privacy. I attach but little credence to his testimony. It was not convincing, nor was the testimony of his witnesses as it related to the acts of the alleged adultery.
There is no testimony that the defendant was caught in flagrante delicto , but there is ample testimony to show that the defendant and co-respondent not only had an inclination towards the commission of adultery with one another, but they took advantage of the opportunity to commit adultery.
The surrounding circumstances in themselves tend to corroborate an undue intimacy between the defendant and co-respondent.
Chancellor Green said, in the case of Berckmans v. Berckmans, 16 N.J. Eq. 122 :
`In order to prove adultery by circumstantial evidence, two points are to be ascertained and established; the opportunity for the crime and the will to commit it. Where both are established, the court will infer the guilt.'
I am convinced that the facts established together with the surrounding circumstances as testified to by the witnesses substantiates a case of adultery against the defendant. Rogers
v. Rogers, 89 N.J. Eq. 1 ; Lasker v. Lasker, 91 N.J. Eq. 352 ; Story v. Story, 91 N.J. Eq. 515 ; Wines v. Wines, 97 N.J. Eq. 55 ; Vogt v. Vogt, 105 N.J. Eq. 566 .
I shall accordingly advise a decree of divorce to the petitioner for the cause as charged in the petition. Submit proposed decree on notice or consent. Source: CourtListener
