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plaintiff for a divorce, in the State of Pennsylvania, and from doing other specific acts. The defendant had moved to dissolve this injunction on his own affidavit, made November 15, 1850. The motion had been opposed, on a counter-affidavit, made by the plaintiff December 20, 1850. The defendant's counsel having read in evidence parts of said counter-affidavit:
Held, that the judge at the trial decided correctly in holding that the parts of said counter-affidavit, which the defendant's counsel had read in evidence, should be stricken from the case, unless be read the whole of said counter-affidavit, or all such other parts thereof, as the plaintiff's counsel should require to be read. One party who uses a paper written or affidavit made by the other, as evidence, cannot be surprised by the evidence which that other may furnish for himself, if allowed to read the residue of it. The one offering it knows its contents, and it is optional with himself whether he will make his adversary a witness or not. If either chooses to make what the other has written or sworn to, in relation to the action, evidence, in his own favor, by reading a part thereof, it is difficult to assign a reason justified by good faith and fair dealing between man and man, for which any part of the residue of such paper or affidavit, relevant to the matter in controversy in such action should be excluded. It must not unfrequently happen, that in reading other parts necessary to explain the full and exact sense and meaning of those first read, passages or expressions may be required to be read, which of themselves may not be strictly relevant to the case, and may not be capable of affecting in any way the conclusions that are to be formed by the court or jury upon the matters in issue. As to such matters, proper instructions must be given to a jury, if they be of a character to call for any instruction from the court. Hart v. Ten Eyck, 2 John. Ch. 87; Woodcock v. Bennett, 1 Cow. 743; Lawrence v. Ocean Insurance Co., 11 John. 241. See, also, 15 John. 409; 2 Hill, 105; 3 lb. 74; 4 Comst. 247.
The plaintiff's counsel at the trial, having claimed that the other affidavit of the plaintiff, made on the 2d day of September, 1850, on which the injunction was granted, having been referred to and re-affirmed in the said counteraffidavit of the plaintiff of December 20, 1850, should be required to be read in evidence by the defendant.
Held, that the judge at the trial was correct, in requiring said affidavit to be read. In legal acceptation, it is a part of the affidavit of December. (See 4 Comst. 243, and cases cited.)
The defendant's counsel proposed, by the testimony of a witness, who, in the summer of 1850, resided in Sixteenth street, directly opposite the house occupied by the plaintiff, to contradict the statement contained in her affidavit of December 20, 1850, that she was not in the habit of giving expensive entertainments, or receiving gentlemen at unscasonable hours: —
Held, that this testimony was properly excluded as inadmissible.
The defendant's counsel offered to prove by the same witness, that the witness was woke up on several occasions in the summer of 1850, by disturbances in the plaintiff's house; that he saw numbers of men, who were unknown to him, coming out after midnight, and that several of them were intoxicated :
Held, that the judge ruled correctly, in deciding that such evidence should be excluded, unless it referred to some of the gentlemen with whom the plaintiff was inculpated in the answer.
The plaintiff's counsel called one Mr. Lee, as witness, and questioned him as to the general character of Anna Flowers (a material witness for defendant) in 1838; and whether, from the degree and extent to which he had found her character bad, he would believe her under oath.
Held, that the question was properly allowed, although Mr. Lee had known her only for ten days in 1838, fourteen years before the trial, when she lived in his house, and although he had not seen her since.
Anna Flowers having testified that, while she lived in the house of the defendant, in August, 1814, she saw the plaintiff and one Captain Howard in bed together, and that three nights thereafter, she herself had intercourse with the said Howard, in the defendant's house, when the defendant and plaintiff were both absent.
Held, that evidence was properly admitted, tending to show Anna Flowers' want of chastity previous to the occurrence with Howard, to wbich she had testified.
The defendant's counsel having objected to the reading of a copy of a letter annexed to the deposition of J. W. Forney, on the ground that it was not sufficiently identified, and that the original onght to have been produced, or its loss shown, or its absence excused :
Held, that the non-production of an original paper is sufficiently accounted for, to admit parol evidence of its contents, when it is shown to be in the possession of a party out of the State, and that all the means which it appears are within the power of the party to compel its production have been employed, and the person having it peremptorily refuses to produce it, especially when it is not made to appear that by the laws of the State in which he resides, he can be compelled to surrender the possession of it, that it may be used in the courts in this State.
The plaintiff's counsel offered to prove the value of the real estate belonging to the defendant, for the purpose of submitting to the jury the question as to the amount of alimony to which the plaintiff should be entitled, in case a verdict was found in her favor; the defendant objected, but the court admitted the evidence. Furthermore, the judge at the trial, on the closing of the evidence, instead of submitting to the jury the questions raised by the allegations in the pleadings, as to the value of the real and personal property of the defendant, and the amount of the clear yearly income therefrom, submitted in addition to the questions which had been previously ordered to be tried, the distinct question, What amount of alimony ought to be allowed annually to the said plaintiff? The defendant's counsel excepted thereto.
Held, that the provisions of the Code of Procedure have made no alteration in the course of proceeding in this respect, rendering it necessary or proper to submit the question of alimony to the jury. It was no more their province to determine what further order should be made for the support of the plaintiff, than it would be to decide what order should be made to provide for the maintenance of the children of the marriage, if any there were. These are matters for the determination of the court. The provisions of the Revised Statutes on this subject, with the single exception that feigned issues are abolished, remained unrepealed.
Held, further, that the admission of the testimony in regard to the value of defendant's estate, forms no ground for setting aside the verdict or reversing the judgment. Confined as it was to the specific purpose for which it was introduced, it was wholly immaterial and superfluous, as respects any other issue. So, also, the submission of the question of alimony to the jury, and their finding thereon, was mere surplusage. It injured no one, and should be wholly disregarded.
The court having awarded alimony from the commencement of the action :
Held, that this was not erroneous, if, under all the circumstances, that seemed just to the court.
The court having required the plaintiff, on the tender of proper security by the defendant for the payment of her alimony, to release her claim of dower in his real estate:
Held, on appeal by the plaintiff, that this part of the judgment was erroneous, it having been decided by the Court of Appeals in Wait v. Wait, 4 Comst. 95, that a divorce, dissolving the marriage contract on the ground of the adultery of the husband, does not deprive the wife of her right of dower in his real estate.
Charles O Conor, for plaintiff.
END v. Del Vecchio and SNYDER.
Evidence Party-wall. Action by the owner of a house against the tenant of the adjoining house (between which and plaintiff's house there was a party wall) and his employee, for damages in making alterations, so as to cause the party wall to settle, in consequence of which the front and rear walls of plaintiff's house were alleged to have been cracked:
Held, that the testimony was properly excluded, by which the defendants offered to prove, each by the other of them, notice to the tenant in possession of the plaintiff's bouse, of an intent to make the alterations, and that he assented thereto. 1st. Because this defence, if it was a defence, was not peculiar to either defendant. If good as to either, it was as to both. 2d. Because the assent of the tenant could only affect his right to complain of what was done, and could not prejudice the plaintiff.
C. A. Nichols, for plaintiff.
CHITTENDEN V. THE EMPIRE STONE DRESSING COMPANY.
Judgment on Appeal. Action against the maker of a promissory note, by the plaintiff, who claimed to be the lawful holder thereof. On the trial, there was nothing to submit to the consideration of the jury — no question of fact whatever. The 265th section of the Code of Procedure provides that where upon a trial the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at a general term; and in that case, the applicatiou for judgment must be made at the general term. The judge accordingly ordered a verdict to be entered for the plaintiff, subject to the opinion of the court at general term ; on a case to be made, with liberty to turn the case into a bill of exceptions.
The principal point passed upon by the court was, as to whether, in reversing the decision of the judge at the trial, final judgment should be rendered in favor of the defendants, or a new trial ordered. In Astor v. L'Amoureux, 4 Selden, 107, the Court of Appeals decided that an appellate court, in reviewing a judgment upon a case made at the trial, is not authorized to render a final judgment against the party who prevailed in the court below. It can only order the judgment reversed and a new trial. In Marquat v. Marquat, 2 Kernan, 336, the testimony had been taken by consent before a referee, and the case tried without a jury, on pleadings and depositions. The judge at special term directed a judgment, which, on appeal to the general term, was reversed, and the complaint dismissed with costs. On appeal to the Court of Appeals, Justice Johnson said : “ When the facts are ascertained upon the trial, either by special verdict or any other form of finding allowed by law, the general question, which party is entitled to judgment, arises upon appeal, and in such cases a judgment disposing of the whole cause may be given at general term, notwithstanding such judgment be adverse to that given at the special term. But when the case is brought for review to the general term upon an allegation of error in the trial — in the process of ascertaining the facts — the only judgment which can properly be given for the appellant is one ordering a new trial." The Court of Appeals disposed of the case of Marquat v. Marquat, by reversing the judgment of the Supreme Court at general term, and affirming that given at the special term.
Hoffman, J., in delivering the opinion of this court, said that in both these cases (Astor v. L'Amoureux and Marquat v. Marquat) the general term had founded its decision upon its own exposition of the evidence; in other words, finding the facts. This is all that is expressly held to be erroneous. The present case is wholly different.