Hunn v. Hunn

New York Supreme Court

Hunn v. Hunn

1 Thomp. & Cook 499

DecidedOctober 15, 1873

StatusPublished

This text of 1 Thomp. & Cook 499 (Hunn v. Hunn) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hunn v. Hunn, 1 Thomp. & Cook 499 (N.Y. Super. Ct. 1873).

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Opinion

E. D. Smith, J.

The finding of the referee that during the sum-

mer of 1869 the said defendant, while navigating or running a canal boat, upon the Erie canal and other canals of the State, did commit adultery and have carnal connection with a certain woman employed by him on said boat as a cook, was based entirely upon the testimony of the witness Rice. Rice was a physician, and by his testimony the plaintiff proved that the defendant had the venereal disease in December, 1869, and took it from a female on board his boat previously to that time in said year. This evidence was objected to by the defendant’s counsel before it was given, on the ground that it was proof of communications or conversations which were privileged and inadmissible, and the objection- was overruled. The physician stated that the defendant called on him as a physician for professional advice, and that they occupied the relation of physician and patient.

The evidence given by this witness was clearly inadmissible under [501]*501statute .prohibiting a physician from disclosing any information which he may have acquired in attending any patient in a professional character. 3 R. S. 690 (5th ed.), § 104; 2 id. 406, § 73; Johnson v. Johnson, 4 Paige, 468; S. C. on appeal, 14 Wend. 641.

The finding of the referee, also, that the defendant committed adultery with a female unknown to the plaintiff, at a house of ill-fame in Buffalo, in the month of July, 1871, is, I think, not sustainable upon the evidence. The witness Albio, upon whose testimony this finding is based, does not in fact testify that he saw the defendant in the city of Buffalo in the year 1871. He saw him there in 1869, and then saw him in a saloon about 8 o’clock in the evening. A girl tended the bar, and he saw the girl go from the bar into a hall, and the defendant also went into the same hall; and that is all he saw. There was no reliable proof that this was a house of ill-fame at that time, or that the defendant had any intercourse with any female therein. The evidence was altogether too weak and loose to base a finding that the defendant then and there committed adultery, as found.

The -judgment, I think, should be reversed, and a new trial granted.

Judgment reversed.

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E. D. Smith, J.

The finding of the referee that during the sum-

mer of 1869 the said defendant, while navigating or running a canal boat, upon the Erie canal and other canals of the State, did commit adultery and have carnal connection with a certain woman employed by him on said boat as a cook, was based entirely upon the testimony of the witness Rice. Rice was a physician, and by his testimony the plaintiff proved that the defendant had the venereal disease in December, 1869, and took it from a female on board his boat previously to that time in said year. This evidence was objected to by the defendant’s counsel before it was given, on the ground that it was proof of communications or conversations which were privileged and inadmissible, and the objection- was overruled. The physician stated that the defendant called on him as a physician for professional advice, and that they occupied the relation of physician and patient.

The evidence given by this witness was clearly inadmissible under [501]*501statute .prohibiting a physician from disclosing any information which he may have acquired in attending any patient in a professional character. 3 R. S. 690 (5th ed.), § 104; 2 id. 406, § 73; Johnson v. Johnson, 4 Paige, 468; S. C. on appeal, 14 Wend. 641.

The finding of the referee, also, that the defendant committed adultery with a female unknown to the plaintiff, at a house of ill-fame in Buffalo, in the month of July, 1871, is, I think, not sustainable upon the evidence. The witness Albio, upon whose testimony this finding is based, does not in fact testify that he saw the defendant in the city of Buffalo in the year 1871. He saw him there in 1869, and then saw him in a saloon about 8 o’clock in the evening. A girl tended the bar, and he saw the girl go from the bar into a hall, and the defendant also went into the same hall; and that is all he saw. There was no reliable proof that this was a house of ill-fame at that time, or that the defendant had any intercourse with any female therein. The evidence was altogether too weak and loose to base a finding that the defendant then and there committed adultery, as found.

The -judgment, I think, should be reversed, and a new trial granted.

Judgment reversed.

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1 Thomp. & Cook 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunn-v-hunn-nysupct-1873.

Opinion

E. D. Smith, J.

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