Leberecht Wottrich, Respondent, v. Edward Freeman, Appellant

Leberecht Wottrich, Respondent, v. Edward Freeman, Appellant. In an action for mm. con. the divorced wife of the plaintiff is a competent witness for him, both to prove the marriage and the offense charged. The judgment record in the action for divorce is competent evidence to show the status of the divorced wife and her competency as a witness. Such judgment cannot be attacked for error or irregularity. Where the former wife of the plaintiff, after testifying to the performance of , a marriage ceremony between her and the plaintiff in Prussia, was asked whether that was the usual way of marriage in that country, this was objected to as incompetent, immaterial, and that rio foundation was laid, the objection was overruled; held, no error; that the evidence was , material as tending to prove a valid marriage, and that no foundation or preliminary proof was required, (Argued November 12, 1877; decided November 20,1877.) This was an action for criminal conversation. Upon the trial, plaintiff offered in evidence a judgment record in an action for divorce a vinculo, brought by him against his wife, by which judgment the marriage was dissolved. This was objected to by defendant’s counsel as improper and immaterial, and that the record showed, on its face, that the divorce was granted upon improper and illegal testimony. The objections were overruled, and the evidence was received “ as the basis of other evidence, which counsel for plaintiff stated they would introduce.” Plaintiff then called his divorced wife as a witness, and she ivas allowed to testify, under objection as to her competency, to the circumstances of her marriage ivith plaintiff, and also to prove the charge set forth in the complaint. Held, no error; that, being no longer the wife of the plaintiff, she Avas competent to testify for him, and that her competency could only be established by the record of divorce; that competency may be established by extrinsic evidence, and by the acts of third parties, the court cited Ratcliff v. Wales (1 Hill, 63); Dickerman v. Graves (6 Cush., 308), and that the judgment could not be attacked collaterally, either for error or irregularity. Krehelev v. Ritter (62 N. Y., 372); Gardner v. Buchbee (3 Coav., 121.) After the Avitness had testified as to the manner of the performance of the marriage ceremony, which she testified took place in Prussia, she was asked whether that was the usual way of marriage in that country. This was objected to on the ground that she was not competent; that it was improper and immaterial, and that there was no sufficient foundation for its admission. The objection was overruled, and the witness answered that it was the usual way. Held, that the evidence was relevant and material, as it tended to prove a material fact — i. e., a marriage valid by the laws of the country where it was solemnized; that the evidence needed no foundation to be laid, or any preliminary proof, to authorize it to be given, as it might be assumed that all residents of a country, of marriageable age and ordi-' nary understanding, are familiar with the usual and customary forms of marriage; and, if the competency of the witness to testify to this fact, by reason of a want of such knowledge was intended by the objection, the ground should have been specified. Lewis E. Carr, for appellant. Samuel Hand, for respondent. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance. All concur, except Church, Ch. J., and Andeows, J., not voting. Judgment affirmed.