Clay v. Clay , 28 N.Y. Sup. Ct. 609 ( 1880 )

Per Curiam :

The utmost that the court could do in such a ease as this would be to hear the communications as matter of favor, and there is no express provision of law for such a contingency as the present.

The petition, so far as it prayed for leave to come in and answer and defend upon the merits, was properly denied for want of power.

The court will, however, look to it that the testimony is clear and convincing before granting the plaintiff relief which must necessarily reflect upon, and, fro tanto, convict the petitioner. In order that the right of the petitioner, not to be convicted unheard, may be secured so far as consistent with the law in such cases, the order of the court below'- should be modified by denying the prayer of the petitioner to come in and defend the action, as a party, and directing that notice be given, to the counsel of the petitioner of all proceedings to take testimony in the action, and that she be allowed to be present and cross-examine the witnesses produced, and that she be called and sworn as a witness and be permitted to give her testimony, and that such witnesses as she may name be summoned and examined, and, as so modified, affirmed, without costs.

Present — Davis, P. J., Brady and Barrett, JJ.

Order modified as directed in opinion, and affirmed as modified.