Opinion
May 14, 1976
Appeal from the Oneida Supreme Court.
Present — Cardamone, J.P., Simons, Mahoney, Dillon and Witmer, JJ.
Order unanimously affirmed, without costs. Memorandum: Defendant wife appeals from an order which struck her affirmative defense of adultery in this divorce action based upon cruel and inhuman treatment, denied her motion to dismiss the complaint because plaintiff husband refused to answer certain questions during an examination before trial about his relationship with another woman, and ordered the case to trial. Under the present divorce statute there is no recriminatory defense in a divorce action based upon cruel and inhuman treatment (see Mante v Mante, 34 A.D.2d 134), and the court properly dismissed the wife's affirmative defense. However, defendant may show that misconduct by plaintiff (the lure and attraction of another woman is a classic example) was the cause of his leaving defendant wife rather than the alleged cruel and inhuman treatment of the wife (see Walden v Walden, 41 A.D.2d 664). To that extent the information is material and necessary to the defense of the action (CPLR 3126). In this case the husband freely answered most of the relevant questions about his relationship with the "other woman" until he was asked several times the ultimate question of whether he and his paramour had engaged in sexual relations. He declined to answer on the ground of self incrimination. Since the wife's defense is based upon the premise that the husband's relationship with this woman caused him to leave home and adultery is not an affirmative defense, proof of actual sexual intercourse is irrelevant. The defense need only elicit the details of the husband's conduct, sufficient to permit the trier of the facts to draw the necessary inferences in the wife's favor on the issue of cruelty. In short, both defendant's proper need for disclosure and the plaintiff's constitutional right against self incrimination may be accommodated without prejudicing the defense. The husband's refusal to answer questions asking only if he had a "romantic relationship" with the woman was not well founded. We see no point however in delaying the matter for a further examination. Upon the trial he may be asked questions concerning his love and affection for this woman and his relationship with her, insofar as it reflects upon his cause for leaving defendant, but plaintiff may invoke his right against self incrimination without penalty with respect to questions concerning the act of adultery. This case has been pending for some time. The pleadings, bills of particulars and examinations before trial are complete, and Special Term was eminently correct in ordering a prompt trial.