Backal v. Backal

In this divorce action, the defendant neither testified nor appeared in the courtroom, and presented no contradiction, by a witness, to the evidence for the plaintiff. The motion to dismiss is made on the ground that: (1) the plaintiff’s proof is not sufficient, and (2) no obligation to testify exists and no inference can be drawn from her failure to do so.

The second objection is sound. The offense is a crime and defendant, who is excused on constitutional grounds from verifying her answer, can, for the same reason, demand that her silence be not used against her. If Butler v. Butler (134 N.…