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Cofone v. Cofone

Decided: April 13, 1971.

ROSEMARY COFONE, PLAINTIFF-APPELLANT,
v.
ANGELO COFONE, DEFENDANT-RESPONDENT



Goldmann, Leonard and Fritz.

Per Curiam

Plaintiff sought a divorce on the ground of defendant's adultery with Rita Chizmar. Her action was uncontested. Judgment of dismissal was entered in the Chancery Division and she appeals.

All that plaintiff in her testimony offered by way of proof of adultery was that defendant had told her "he was seeing [Miss Chizmar] before we were married, and he was still going with her"; that she had once found a pair of defendant's

pants soaking in the bathroom washbasin with white stains on the front, and that she had seen defendant get out of Miss Chizmar's car at night when it stopped on a side street across from the marital home.

Miss Chizmar testified that she was friendly with defendant and had maintained a relationship with him until October 1969, a date some six months before trial. The following ensued during her direct examination by plaintiff's attorney:

Q. During the period of his marriage did you commit adultery with him?

A. Yes, I did.

THE COURT: Wait a minute. She has rights under the United States Constitution. You should not have asked her that question. There is nobody here to protect her, and she answered it too fast for me to protect her, but you are a lawyer. She has no understanding and has not been given any understanding on the record here that she has certain rights under the Fifth Amendment to the United States Constitution and could avail herself of them. Now she has put herself in a position, where she could probably be or might probably be indicted by a Grand Jury.

I will strike the question and strike the answer, and I will say that you cannot prove adultery out of the mouth of an alleged adulteress, except in a very rare, hotly contested case, and this is not that sort. Go ahead.

Q. During the period of that relationship how often did you see Mr. Cofone?

A. I would say about a few times a week.

Q. Did you see him in circumstances where you were ...


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