Delling v. Delling , 69 N.Y.S. 479 ( 1901 )

Gildersleeve, J.

The plaintiff, Stephen Belling, brings this action for an absolute divorce against his wife, Paulina Belling. The defendant has not appeared in the action, and the case was tried as an uncontested divorce case. The evidence as to the service of the summons and complaint upon the defendant is not satisfactory. An affidavit of the plaintiff is submitted to the effect that one “ Thomas Slattery, the person who served the summons herein, * * * refused to sign the affidavit of service unless I would pay him the sum of two dollars, but acknowledged that he made the service, * * * and further, I know that service was made, for the reason that I was personally present when said service was made.” On the trial Thomas E. Slattery was put on the stand and swore that he served the summons and complaint on the defendant, but as to the identification of the defendant his testimony is as follows, viz.: “ Q. Bo you know the plaintiff in this action, Stephen Belling? A. Tes. Q. Bo you know Paulina Belling, the defendant in this action? A. I don’t know her, but I know him. Q. Bid you ever meet her? A. I have seen her, but I,never met her.” This is all the knowledge he apparently possessed upon the subject. He says not a word of the plaintiff’s being present at the time, and even if he had sworn that the plaintiff pointed out the person served as his wife, it would hardly have helped the matter, for the evidence of the plaintiff as to service upon .the defendant of the summons and complaint in a divorce suit should be received with extreme caution, even if it can be said to be admissible at all. The witness Slattery should be required to give further and more convincing proof of the identity of the person he claims to have served with the summons and complaint. As to the adultery, the only evidence is that of the witness John Graetter, who swears that he had sexual intercourse with the defendant, and that of the witness Katie Flagg, a half-sister of the plaintiff, who swears she followed the defendant and a man, not the plaintiff, into some woods at Fort George, Hew York city, at half-past nine or ten o’clock on an evening in the month of August, but the year is not stated. In reply to the question, “ Did you see them in sexual intercourse there in the woods that night?” she answers “Yes.” It seems to me that her testimony on this subject is rather too brief, and that she should have been subjected to further examination. With regard to the testimony of the co-respondent, John Graetter, that defendant had committed adultery with him, such evidence should be received with extreme reluctance and only when corroborated by other proof. See Fawcett v. Fawcett, 29 Misc. Rep. 673. An order may be entered restoring the case to the calendar and setting it down for further evidence on Wednesday, February 20, 1901.

Ordered accordingly.