Nina Larre Duryea, Respondent, v. Chester Burnell Duryea, Appellant

Nina Larre Duryea, Respondent, v. Chester Burnell Duryea, Appellant. Action for a separation —judgment not reversed for an error in the admission of evidence. A judgment, rendered in an action for a separation for cruel treatment, will not be reversed because of the improper admission in evidence of a letter written by the plaintiff to her father-in-law, where it appears that the result would have been the same if the evidence in question had been rejected. Van Brunt, P. J., dissented. Appeal by the defendant, Chester Burnell Duryea, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day .of July, 1903, upon the decision of the court, rendered after a trial at the Hew York Special Term, granting the plaintiff a separation from the defendant upon the ground of cruel and inhuman treatment. Frederick H. Man, for the appellant. Herbert C. Smyth, for the respondent. [MAJORITY — McLaughlin, J. :] 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. [DISSENT — Van Brunt, P. J. (dissenting) :] Van Brunt, P. J. (dissenting) : I think the judgment should be reversed because of the receipt in evidence of. the letter of . June' 29, 1901, which is admitted to ■ have been error. A more glaring instance of allowing a party to give evidence in her own behalf in the shape of a letter lias seldom been seen. Judgment affirmed, with costs.