Duryea v. Duryea

91 A.D. 101, 86 N.Y.S. 337

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1904
• Status: Published

Opinions

McLaughlin, J. :

The defendant appeals from an interlocutory judgment in favor of the plaintiff for a separation upon the ground of cruel and inhuman treatment. It would serve nó useful purpose to review the facts which induced the trial court to grant the judgment appealed from. It is sufficient to say that we have carefully examined the record and are thoroughly satisfied its conclusion is correct.

It may be conceded that the letter óf June 29, 1901, from the plaintiff to her father-in-law was improperly admitted in evidence, but it does not follow by reason thereof that the judgment appealed from is erroneous; on the contrary, we think it clearly appears from the whole record that the admission of this letter could not, by any possibility, have injured the defendant, inasmuch as the result must necessarily have been the same if the letter had been rejected. If we are correct in this conclusion, then the admission of the letter, though improper, did not injure the defendant, (Forrest v. Forrest, 25 N. Y. 501; People v. Gonzalez, 35 id. 49; Tenney v. Berger, 93 id. 524; McGean v. Manhattan Bailway Co., 117 id. 219.) The specific acts of cruelty and inhuman treatment testified to by the plaintiff, in which she was corroborated in no small degree by the defendant himself, entitled her to the judgment which she has obtained.

It follows that the judgment appealed from must be affirmed, with costs.

Ihgraham, Hatch and Laughlih, JJ., concurred ; Yah Bruht, P. J., dissented.