The complaint of plaintiff, George D. Thomas, in his action for divorce, is based on an alleged act of adultery. In her answer defendant, Jeanne M. Thomas, admits the alleged act of adultery, but raises separate and affirmative defenses of connivance, recrimination and lack of jurisdiction in this court.
Defendant seeks to take the deposition of plaintiff; this is opposed by plaintiff essentially on the grounds that no useful purpose will be served by conducting the said examination and that its purpose is to merely harass the plaintiff and that it would violate R.S. 2:97-9 which provides:
"No husband or wife in any action or proceeding for divorce on account of adultery shall be compelled to give evidence for the other, except to prove the fact of marriage."
However, the following rules govern and control the right of the defendant to take the testimony of the plaintiff by deposition upon oral examination:
" Rule 3:26-1. When Depositions May be Taken.
After the commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. * * *.
Rule 3:26-2. Scope of Examination.
So far as I have been able to determine there is no decided case as to the effect of R.S. 2:97-9 on the general rules governing pre-trial examinations.
Without now deciding to what extent, if any, plaintiff's deposition may be used by defendant at trial, I find that the taking of his deposition is permissible, subject, of course, to the provisions of Rule 3:30-4, and without waiver of plaintiff's right at trial to object to the use of the deposition within the terms of R.S. 2:97-9, and the provisions of Rule 3:26-4. It is clear that defendant may examine plaintiff as to the basis of his complaint, as she will be able to cross-examine him if he testifies; that is so despite her admission of the adultery as charged, in order to protect the interest of the State in the marriage. It is more doubtful, in view of the statute, R.S. 2:97-9, that she may use his deposition at trial in support of her own affirmative defenses. Nevertheless, by taking plaintiff's deposition defendant may be able to discover the identity and location of persons having knowledge of relevant facts and other leads to admissible evidence in support of her affirmative defenses.
In the circumstances I have concluded to advise an order denying plaintiff's application to quash ...