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Attorney(S)

John A. Anderson and John H. Hultman for appellant. Thomas P. Nevin for respondent.

Judges

Stanley H. Fuld
Charles W. Froessel
John Van Voorhis

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Smart Summary

Poppe v. Poppe — Court of Appeals of the State of New York (Decided July 3, 1957)

Factual and Procedural Background

Mr. and Mrs. Poppe were married in 1922 and lived together until 1949, when the husband left home. Six years later (1955), Mrs. Poppe brought an action for separation alleging that her husband had abandoned her and had refused to support her. The husband denied the complaint and pleaded as an affirmative defense that his wife's cruelty induced and justified his leaving.

The case was tried by the court without a jury, with the husband and wife as the only witnesses. The husband testified that he had left home but asserted that his wife's conduct justified his departure. Over the wife's objection, he testified that in 1949 the wife had told him she had had illicit relations "a number of times" with another man and that they "thought" they "would elope and go away together," and that shortly thereafter she rented their bedroom, moved his bed to the dining room, and occupied the porch. The trial court found that the defendant husband was justified in living separate and apart and dismissed the complaint. The Appellate Division affirmed by a divided court. On this appeal the sole question presented is the admissibility of the husband's testimony concerning the wife's statements to him.

Legal Issues Presented

Whether the husband's testimony that the wife admitted to illicit relations with another man and planned to elope was admissible notwithstanding Section 349 of the Civil Practice Act.
Whether the wife's statements to the husband were "confidential communications" within the meaning of Section 349, thereby privileged from disclosure, or whether the communications fell outside the privilege because they were communications aimed at destroying the marital relation (and thus admissible to prove cruelty).

Arguments of the Parties

Appellant (Mrs. Poppe)

The wife's position (as reflected in the objections and the dissenting opinion summarized below) was that her admission to the husband that she had committed adultery was a "confidential communication" protected by Section 349 of the Civil Practice Act and therefore inadmissible.
The appellant relied on authorities (for example, Warner v. Press Pub. Co., Parkhurst v. Berdell, People v. Daghita, and other cases cited in the dissent) to support the proposition that communications induced by the marital relation are within the statute's protection and that an admission of adultery by a spouse to the other is such a confidential communication.

Respondent (Mr. Poppe)

The husband defended his testimony as admissible evidence of the wife's cruelty and as relevant to his affirmative defense that her conduct justified his leaving the marital home.
The respondent's position, as accepted by the trial court and the majority here, was that Section 349 does not automatically render every private communication between spouses privileged; only communications that are truly "confidential" in the sense induced by affection, trust and loyalty are protected. A communication that is a defiant declaration of misconduct and an intention to persist in it (or to abandon the marriage) may be found not to be confidential and therefore admissible.
The respondent relied on authority and the court's prior decisions holding that statements by a spouse which amount to personal wrongs or are aimed at destroying the marriage are not within the marital privilege and may be admitted to prove cruelty.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Prall v. Hinchman, 6 Duer 351	Cited for the proposition that whether a communication is "confidential" is a preliminary question of fact for the trial judge.	Used to support the statement that admissibility depends upon a preliminary factual determination by the trial court as to confidentiality.
United States v. Cotter, 60 F.2d 689	Also cited for the preliminary-fact rule regarding confidentiality and admissibility.	Cited in the same context as Prall to show that the trial judge decides whether a communication was confidential.
Southwick v. Southwick, 49 N.Y. 510	Referenced as part of New York authority recognizing that admissibility in matrimonial actions depends on whether the communication was confidential when made.	Relied upon to show consistency of the rule that confidentiality governs admissibility in matrimonial cases.
Sheldon v. Sheldon, 146 App. Div. 430	Same general point: New York cases assume admissibility depends on whether the communication was confidential.	Used as supporting authority for the majority's view on how Section 349 operates in matrimonial litigation.
Symington v. Symington, 215 App. Div. 553	Cited among New York cases treating confidentiality as the test for privilege under the statute in matrimonial actions.	Reinforces the majority's statement about New York practice.
Lanyon's Detective Agency v. Cochrane, 240 N.Y. 274	Recognized that communications telling a spouse of the other's intention to leave or love another are not within the marital privilege when used to prove cruelty.	Quoted and used to illustrate that statements aimed at destroying the marital relation are not protected and that the victim could testify without the detective's evidence.
Woodrick v. Woodrick, 141 N.Y. 457	Held that a husband's testimony recounting a private interview where he accused his wife of adultery was competent on the issue of cruelty and admissible against the wife.	Relied upon as precedent permitting disclosure of spousal communications when offered to prove cruel and inhuman treatment rather than adultery itself.
de Meli v. de Meli, 120 N.Y. 485	Supports that unfounded charges of infidelity by one spouse are admissible to prove cruelty.	Used in the majority's parity-of-reasoning argument that an admission of infidelity (plus intent to elope) is likewise admissible to prove cruelty.
Millspaugh v. Potter, 62 App. Div. 521	Cited as an example where a cruel accusation of infidelity was admissible to show cruelty.	Used to support the proposition that accusations of infidelity can constitute evidence of cruelty.
Fowler v. Fowler, 58 Hun 601 (opinion in 11 N.Y.S. 419)	Cited historically in the line of cases addressing when a spousal communication is not privileged (e.g., when used as a device to entrap).	Discussed as part of the authorities distinguishing communications that are not protected from those that are.
People v. McCormack, 278 App. Div. 191, affd. 303 N.Y. 782	Included among authorities illustrating the kinds of communications that are not confidential for privilege purposes.	Appears in the majority's list of decisions supporting exclusion of privilege for statements aimed at destroying the marital relation.
United States v. Mitchell, 137 F.2d 1006	Cited as one of several authorities showing that certain spousal declarations are not confidential.	Part of the majority's authority list; used to show precedent outside New York taking a similar view.
Sexton v. Sexton, 129 Iowa 487	Another out-of-state authority cited for the principle that admissions or declarations intended to destroy the marriage are not privileged.	Used by the majority as supporting authority for admitting such communications to prove cruelty.
Warner v. Press Pub. Co., 132 N.Y. 181	Cited by the appellant (and discussed by the dissent) as an example recognizing certain marital communications as protected.	The majority distinguished Warner as involving communications not offered to establish cruelty and as confidential in content/context; the dissent cited it to support exclusion.
Hanor v. Housel, 128 App. Div. 801	Relied upon by the appellant; discussed by the majority as distinguishable.	Noted by the majority as not on point because those cases did not involve communications offered to establish cruelty.
Yax v. Yax, 125 Misc. 851, affd. 217 App. Div. 714	Cited by the appellant and distinguished by the majority.	The majority observed that Yax (and the other cases cited by the wife) did not present the same factual and legal context (communications offered to show cruelty).
Parkhurst v. Berdell, 110 N.Y. 386	Cited in the dissent for the proposition that conversations induced by the marital relation are within the protection of the statute.	The dissent relied on Parkhurst to emphasize that admissions by a spouse to the other about adultery are within the statute's protection.
People v. Daghita, 299 N.Y. 194	Cited in the dissent to explain the object of Section 349: to encourage complete confidence between spouses by protecting communications made in reliance on marital trust.	The dissent used Daghita (and the quotation from Chamberlain v. People) to argue for a broad protection of spousal admissions made in confidence.
Chamberlain v. People, 23 N.Y. 85	Quoted in People v. Daghita and cited in the dissent for the principle that the law protects communications to preserve full confidence between spouses.	Referenced by the dissent to underscore the statute's protective purpose and to argue that an admission of adultery to a spouse is the sort of communication intended to be shielded.

Court's Reasoning and Analysis

The majority (Fuld, J.) proceeded in a stepwise legal analysis grounded in Section 349 of the Civil Practice Act and precedent.

Interpretation of Section 349: The court noted the statute has a twofold function—(a) to render a husband or wife "not competent" to testify against the other in actions founded upon adultery (except to prove marriage or disprove adultery), and (b) to bar disclosure of "a confidential communication" made by one spouse to the other during marriage without the other's consent.
Applicability to this action: Because this action was a separation action based on abandonment and nonsupport (not an action "founded upon an allegation of adultery"), the first sentence disqualifying testimony in adultery actions did not apply. The controlling question was whether the wife's statement to the husband was a "confidential communication" within the protection of the statute.
Threshold factual question for the trial judge: The court emphasized, citing authority, that whether a particular communication is confidential involves a preliminary question of fact for the trial judge to decide, even if the ultimate issue (here, cruelty) overlaps with admissibility.
Definition and scope of "confidential communication": The court explained that Section 349 does not make all private communications between spouses inadmissible; the privilege protects only those statements that are truly “confidential”—induced by the marital relation and prompted by affection, confidence and loyalty.
Exceptions where communications are not confidential: The court held that the statute was not designed to shelter communications that are aimed at destroying the marital relation—examples include an unfounded charge of adultery or a declaration that the speaker loves another, has had improper relations, and plans to leave. The majority cited prior decisions (Woodrick, Cochrane, Lanyon's Detective Agency, and others) to show that such statements have been treated as outside the privilege when offered to prove cruelty.
Application to the facts: The court concluded the husband's testimony described a defiant declaration by the wife (admitting past illicit relations and intent to elope) coupled with subsequent conduct (renting the bedroom, moving the husband's bed, taking up porch quarters) that rebutted any inference the statement was induced by confidence. Thus the trial court was "fully warranted" in deciding the presumption of confidentiality was rebutted and in admitting the evidence.
Policy and parity of reasoning: The court reasoned that just as testimony about assaultive acts by one spouse is admissible to prove cruelty, so too should testimony about verbal acts that have equally destructive effects on the marriage be admissible. The majority rejected the notion that the privilege should allow a spouse to inflict private verbal cruelty with immunity.
Distinguishing contrary authorities: The majority distinguished the cases relied upon by the wife (Warner, Hanor, Yax) on the ground that those cases did not involve communications admitted to establish cruelty nor communications that, by content and context, indicated they were other than confidential.

Holding and Implications

Judgment affirmed.

Holding: The Court of Appeals affirmed the judgment of the Appellate Division and the trial court's ruling. It held that the trial court did not err in admitting the husband's testimony recounting the wife's admission of illicit relations and intent to elope because the trial judge was entitled to find the statement was not a confidential communication within the meaning of Section 349.

Direct consequences: The trial court's finding that the husband was justified in living separate and apart and its dismissal of the wife's separation complaint were upheld. The admission of the husband's testimony stands as to this case; the trial court's factual determination that the communication was not privileged was accepted.

Broader implications noted by the Court: The opinion articulates and applies the principle that the marital privilege does not shield communications that are aimed at destroying the marital relationship or that demonstrate an absence of marital confidence; statements that are defiant admissions of misconduct and plans to leave are not within the protection of Section 349 when offered to prove cruelty. The court emphasized that the privilege was not intended to permit private verbal cruelty to go unremedied in matrimonial litigation.

Separate Opinions (Summary)

Concurring: Justice Froessel agreed the testimony was admissible and would affirm whether or not the communication were found confidential, emphasizing the common-law exception to the marital incompetency rule in matrimonial cases and the necessity of admitting such testimony to avoid injustice.

Dissenting: Justice Van Voorhis would have excluded the husband's testimony as a confidential communication under Section 349. The dissent argued that the wife's admission as presented appeared to be a straightforward disclosure induced by the marital relation and that admitting such communications would eviscerate the statutory protection and encourage misuse of separation actions.

This summary is drawn exclusively from the opinion provided. Where the opinion did not supply additional facts, arguments, or holdings, no such information has been added.

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HAZEL POPPE, Appellant, v. JOHN H. POPPE, Respondent.

FULD, J.

Mr. and Mrs. Poppe, married in 1922, lived together until 1949. In that year, the husband left home and, six years later, Mrs. Poppe, alleging that her husband had abandoned her, brought this action for separation. The husband denied the allegations of the complaint and interposed an affirmative defense that his wife's cruelty induced and justified his leaving her.

In the ensuing trial, held by the court without a jury, husband and wife were the only witnesses. Mrs. Poppe testified that her husband had abandoned her and had refused to support her. He acknowledged leaving home, but offered evidence to establish that conduct on the part of his wife justified his action. Thus, in the course of his testimony, he stated, over objection, that in 1949 his wife had told him that she had had illicit relations "a number of times" with another man and that they "thought" that they "would elope and go away together." Not long after this conversation, he went on to testify, his wife rented the room previously used as their bedroom, moved his own bed into the dining room and took up her quarters on the porch. It was immediately after this that he left to live elsewhere.

At the conclusion of the case, the court found that "defendant was justified in living separate and apart from plaintiff" and dismissed the complaint. In a short opinion, the judge reaffirmed his belief as to the propriety of the husband's testimony of what his wife had told him "to prove cruel and inhuman treatment". The Appellate Division affirmed by a divided court and, on this appeal, the sole question presented involves the admissibility of that evidence.

Section 349 of the Civil Practice Act, entitled "Testimony of husband and wife in action or proceeding", serves a two-fold function; on the one hand, it stamps a husband or wife as "not competent" to testify in a case based on adultery and, on the other, it renders inadmissible "a confidential communication" made by one spouse to the other during marriage. Insofar as pertinent, it provides that "A husband or wife is not competent to testify against the other, upon the trial of an action * * * founded upon an allegation of adultery, except to prove the marriage or disprove the allegation of adultery. * * * A husband or wife shall not be compelled, or without the consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage."

The action before us is obviously not "founded upon an allegation of adultery" and, consequently, the section's first sentence does not disqualify Mr. Poppe from testifying against his wife. And it is equally obvious that the final sentence of section 349, relating to the marital privilege, does not bar disclosure of Mrs. Poppe's declaration to her husband. The statute does not render inadmissible all communications between husband and wife, even though made in privacy and when alone. Designed to protect and strengthen the marital bond, it encompasses only those statements that are "confidential," that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship. Whether, therefore, a particular communication is to be excluded from evidence on the ground that it is confidential necessarily involves a preliminary question of fact for decision by the trial judge, and it matters not that the ultimate issue for determination by the trier of the facts (here, cruelty) is essentially the same as the issue which determines admissibility. ( Prall v. Hinchman, 6 Duer 351, 357; United States v. Cotter, 60 F.2d 689, 691; McCormick on Evidence [1954], pp. 123-125.)

This privilege must be distinguished from the general incompetency of one spouse to testify against the other — recognized in some states and in the federal courts but not in this state — which is not applicable where the issue is whether one spouse wronged the other. (See 8 Wigmore on Evidence [3d ed., 1940], § 2239; McCormick on Evidence [1954], § 88.) To the contention that the marital privilege for confidential communications may never be asserted in an action between husband and wife, it is sufficient merely to note that section 349 of our Civil Practice Act does not provide that confidential communications between husband and wife "shall be privileged" in all cases "except" a case brought by one against the other. (Compare statutes of other jurisdictions expressly providing for such an exception, as well as others: e.g., Cal. Code Civ. Proc., § 1881; Col. Rev. Stats., § 153-1-7, subd. 1; Minn. Stats., § 595.02, subd. [1]; Wis. Stats., 1955, § 325.18; see, also, 2 Wigmore, op. cit., § 488, p. 530 et seq., n. 2, listing statutes; McCormick, op. cit., § 88, p. 177; American Law Institute, Model Code of Evidence [1942], Rule 216; Uniform Rules of Evidence, Rule 28.) Indeed, far from even suggesting that the New York statute does not apply in a suit between the spouses, our courts have always assumed that in a matrimonial action, as in every other, admissibility depends upon whether the communication was a confidential one when made. (See, e.g., Southwick v. Southwick, 49 N.Y. 510, 518-519; Sheldon v. Sheldon, 146 App. Div. 430, 432; Symington v. Symington, 215 App. Div. 553, 556-557.)

Depending as it does upon the character of the communication, as well as upon the relationship of the parties, it may be impossible to formulate an all-embracing definition or an infallible guide. It is, however, perfectly clear that the statute was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other, or that it was ever intended to label confidential a communication aimed at destroying the marital relation or stamp with a seal of confidence and protect from disclosure an unfounded charge of adultery or, more to the point, a declaration by a wife that she loves another man, has had improper relations with him and plans to leave home and live with him. (See Lanyon's Detective Agency v. Cochrane, 240 N.Y. 274, 279, 280-281; Woodrick v. Woodrick, 141 N.Y. 457, 462; de Meli v. de Meli, 120 N.Y. 485, 493; Millspaugh v. Potter, 62 App. Div. 521, 523-524; Fowler v. Fowler, 58 Hun 601, opinion in 11 N.Y.S. 419; see, also, People v. McCormack, 278 App. Div. 191, 196-197, affd. 303 N.Y. 782; United States v. Mitchell, 137 F.2d 1006, 1009; Sexton v. Sexton, 129 Iowa 487, 493 et seq.)

In the Woodrick case ( supra, 141 N.Y. 457), for instance, the defendant husband was permitted to testify, over his wife's objection, of a private interview with her and to relate what each said to the other when he accused her of adultery. In answer to the wife's argument that the trial judge erred in allowing the communication to be divulged, this court declared that "We think this evidence was competent [against the wife] on the issue of cruel and inhuman treatment, and the trial judge properly admitted it, stating as he did to the jury that it was not admitted as bearing on the question of adultery" (p. 462). And in the Cochrane case ( supra, 240 N.Y. 274), the court also recognized that no rule or privilege would prevent a wife, plaintiff in a separation suit, from testifying that her husband had told her that "he loved another woman," was going to live with her and would not be "coming back home." It appeared that, after the wife had been so advised by her husband, she hired a detective agency to shadow him in order to obtain evidence of infidelity for use in her separation action against him. The agency procured such evidence and later proceeded to sue the husband for the services rendered the wife on the theory that they constituted a necessity for which he was responsible. Holding that the services were not necessary to enable the wife to successfully maintain her action for separation, the court made this significant statement (pp. 280-281): "The cruelty, if any, * * * consisted not in these promiscuous acts of intercourse upon the part of her husband, but in his treatment of his wife and the things he said to her * * *. She also knew what the husband had told her as to the cause of his leaving, and could have testified to it in court without the aid and assistance of the detective." (Emphasis supplied.)

In the case before us, the husband's statement of what his wife told him was offered on the issue of her cruelty, and the trial court was fully warranted, in admitting it, in deciding that the presumption of confidentiality had been rebutted. (See 8 Wigmore on Evidence [3d ed., 1940], pp. 646-647.) The disclosure related, it is evident, not to the confession of a penitent wife confiding to her husband the story of her wrongdoing, but to a defiant declaration of misconduct and of an intention to persist therein and go away with the other man. No considerations of domestic peace or of conjugal loyalty, no considerations of the sanctity of the marital relation, prohibit disclosure of such a communication. The wife's statement in the present case, particularly when coupled with her subsequent conduct, not only negated any inference that the statement was induced by any confidence or trust between the parties, but actually demonstrated its absence.

No policy has prohibited one spouse from testifying as to assaultive acts committed by the other, and such testimony has always been admissible on the issue of cruelty. By parity of reasoning, no policy exists, or may properly be advanced, to forbid a husband or wife from giving evidence, likewise for its bearing on the issue of cruelty, as to statements made by the other which may have an effect no less cruel and no less destructive of the marital relation, though their impact be upon the mind and spirit rather than the body. It has always been recognized that an unfounded charge of infidelity by one spouse to the other is admissible to prove cruelty (see de Meli v. de Meli, supra, 120 N.Y. 485, 493; Millspaugh v. Potter, supra, 62 App. Div. 521, 523), and there is no discernible basis for differentiating in this regard between a "cruel" accusation of adultery and an equally "cruel" admission of past infidelity, particularly when to it is added an assertion of planned elopement.

It would be anomalous if it were to be decided that a privilege designed to encourage the marital relation operates to permit one spouse to be cruel to the other as long as the hurt-provoking words are spoken in private. The cloak of secrecy placed about confidential communications between husband and wife could never have been, and was not, designed to force the victim to put up with such conduct. It could never have been, and was not, intended to seal his lips and prevent him from relying upon such behavior as evidence of cruelty in a separation suit subsequently brought or in defense, as here, to a charge of abandonment when, no longer able to bear his mate's verbal cruelty, he departs the marital home. In short, it would be a paradox to treat as confidential a communication whose unequivocal purpose and inevitable consequence were to destroy all confidence that may have existed.

The cases relied upon by plaintiff wife ( Warner v. Press Pub. Co., 132 N.Y. 181; Hanor v. Housel, 128 App. Div. 801; Yax v. Yax, 125 Misc. 851, affd. 217 App. Div. 714) are basically different from the one before us. It is enough to observe that in no one of them was the declaration offered, as it was here, to establish the cruelty of one spouse toward the other, and in none did the communication, by its content or context, give rise to an implication that it was other than confidential.

The judgment should be affirmed.

FROESSEL, J. (concurring).

I agree that the testimony of the husband in this case was admissible. The communication of the wife could well have been found to have constituted cruel and inhuman treatment. I would reach this result, however, whether or not this particular communication were deemed confidential. As Judge FULD recognizes, section 349 of the Civil Practice Act "was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other".

Such exception to the privilege existed at common law (8 Wigmore on Evidence, §§ 2239, 2338; McCormick on Evidence, § 88). It was created both because of the "necessity" of avoiding injustice to the excluded spouse [in matrimonial cases, such is often the only evidence such party has], and because of the realization that in such cases the reason for the privilege is absent (see 8 Wigmore on Evidence, § 2239). Our courts without question have repeatedly admitted such testimony in separation actions over these many years. It would astonish the Bench and Bar to hold that in such actions based on cruelty either spouse could seal the lips of the other as to communications directly involved in the issues presented. If that were the rule, one spouse might torture another in secrecy and with complete immunity, and courts would be powerless to intervene. Indeed, as Wigmore puts it, such a situation would work a "cruel injustice" (Vol. 8, § 2338, p. 653).

For the foregoing reasons I would affirm.

VAN VOORHIS, J. (dissenting).

The important question upon this appeal is whether the trial court should have excluded testimony by a husband who has been sued in a separation action, that his wife told him that she had committed adultery. This testimony was objected to as a confidential communication privileged under section 349 of the Civil Practice Act. The ground of the action is abandonment and nonsupport. The husband's defense is that his wife's cruel and inhuman treatment justified him in leaving her. His testimony that she admitted having had illicit relations with another man was introduced upon the theory that it was evidence of cruel and inhuman treatment of the husband by the wife.

Section 349 of the Civil Practice Act states: "A husband or wife shall not be compelled, or without consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage." An admission by a wife to her husband that she has engaged in sexual relations with another man during marriage is a confidential communication within this section. "A conversation on such a subject between husband and wife seems to us to be clearly within the protection of the statute." ( Warner v. Press Pub. Co., 132 N.Y. 181, 185-186.) Not all communications between husband and wife when alone are confidential, but conversations are which have been induced by the marital relation ( Parkhurst v. Berdell, 110 N.Y. 386, 393). This is one of the best known examples of such a conversation.

It is argued that this testimony was not privileged on the theory that this wife was not penitent but made this remark as an affront intended to discountenance the defendant by charging him with being the husband of an adulteress. Such a distinction cannot be observed in practice. An alienated spouse who is an antagonist in a separation action may be depended upon to testify to such a remark in a manner which will render it admissible under so subjective a distinction. It would simply mean, in practice, that all communications of this nature would be admitted in actions between spouses without regard to section 349.

Nothing to the contrary was held in Woodrick v. Woodrick ( 141 N.Y. 457) or Fowler v. Fowler (58 Hun 601, opinion in 11 N.Y.S. 419). In the Woodrick case, the wife sued the husband for separation, charging him with cruel and inhuman treatment in having falsely accused her of cohabiting with another man. The husband met her testimony concerning this accusation (admitting that he had made such a charge against her) by testifying to circumstances indicating that he did so in good faith believing it to be true. In Fowler v. Fowler, the wife testified that her husband afterward admitted that his pretended confession had been false, made, as he said, out of whole cloth, with the hope of inducing a similar concession from her in return. The General Term said (p. 420) in deciding the case: "In other words, this `confidential communication' from the husband to the wife was a deliberate device to entrap the wife into a confession of guilt on her own part. There is no shield of privilege for such an act as this."

The testimony in the instant case is of a different character. It is: "She said she was going out with this man and had relations together, for a number of times, and they also thought they would elope and go away together." Afterwards she asked her husband to return to live with her, but he refused. There is nothing in this testimony indicating that this communication was made to injure the husband or for any ulterior purpose. For anything that appears to the contrary, it was a simple, unembellished statement of how things stood with her at the time when she was speaking. This is an example of the full and free communication between married people which the law encourages, and which section 349 of the Civil Practice Act was enacted to protect ( People v. Daghita, 299 N.Y. 194, 198-199; 8 Wigmore on Evidence [3d ed., 1940], § 2285, pp. 531-532; § 2332, pp. 636-637). The object of this provision was, as stated in the opinion written by Judge CONWAY, as he then was, in People v. Daghita ( supra, p. 198), quoting from Chamberlain v. People ( 23 N.Y. 85, 89): "`that the most entire confidence may exist between them, and that there may be no apprehension that such confidence can, at any time, or in any event, be violated so far, at least, as regards any testimony or disclosure in a court of justice'." It is said that accusations of infidelity, made by one spouse to the other, are admissible in separation actions to prove mental cruelty ( de Meli v. de Meli, 120 N.Y. 485). In the leading case just cited, the testimony was that the husband circulated false charges of her adultery among his wife's friends. No confidential communication was involved. The circumstance that charges of this nature may constitute evidence of cruel and inhuman treatment does not contradict the rule that admissions of adultery by one spouse to another are privileged under section 349 of the Civil Practice Act. Cruel and inhuman treatment must be proved by competent witnesses and by admissible evidence like other material facts in lawsuits.

Exclusion in separation actions of communications between husband and wife which have been induced by the marriage relation, has a salutary effect upon the use of such actions as a form of legalized blackmail, which is a practice that is occasionally followed by an unscrupulous spouse to bring a more upright marriage partner to heel.

The judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

BURKE, J., concurs with FULD, J.; FROESSEL, J., concurs in result in a separate opinion in which DESMOND and DYE, JJ., concur; VAN VOORHIS, J., dissents in an opinion in which CONWAY, Ch. J., concurs.

Judgment affirmed.

POPPE v. POPPE