Art. 8. Evidence.

remained away from her, is sufficient to require submission to the jury of the question as to whether the favors accorded to the husband by defendant were not the inducing cause of his desertion. Romaine v. Decker, 11 App. Div. 20, 77 St. Rep. 79, 43 N. Y. Supp. 79. This case, however, is distinguished and the rule stated to be dictum in Buchanan v. Foster, 23 App. Div. 544, 48 N. Y. Supp. 732.

Where a wife brought action against her husband's father for alienating his affections and enticing him away, it was held that proof that plaintiff's father-in-law, upon learning of his son's marriage, declared that he would not allow the son and wife to live together if it cost him ten thousand dollars, etc., but not coupled with any evidence tending to show that he had ever attempted to carry out this threat, is not sufficient to establish liability on part of defendant. Rubenstein v. Rubenstein, 60 App. Div. 238, 103 St. Rep. 1067, 69 N. Y. Supp. 1067.

Where the action is founded upon adultery, the failure of the jury to believe the defendant's denials of the adultery does not make it less incumbent upon the plaintiff to show affirmatively by competent and sufficient proof the fact of the adultery. "If the proof were insufficient to establish the charge the jury would not be at liberty to supply any defects in such proof by inferences. from the outside, nor were they warranted in assuming that because they decided the defendant's narrative to be false that they were entitled to jump to the conclusion that the converse of that narrative must be true, without any further testimony." Ramsey v. Ryerson, 24 Abb. N. C. 114.

Declarations of the plaintiff's husband are not evidence against the defendant, and the rules of evidence governing the admission. of declarations of co-conspirators have no application to these cases. Romaine v. Decker, 11 App. Div. 20, 77 St. Rep. 79, 43 N. Y. Supp. 79, distinguished in Buchanan v. Foster, 23 App. Div. 544, 48 N. Y. Supp. 732.

In an action for alienation of affection brought against the plaintiff's sisters-in-law, it is competent to show that the plaintiff's husband conveyed his property to the defendants, as such evidence bears upon their intention to deprive the plaintiff of means of support out of the property of the husband, and as tending to show that the defendants were interested in separating the husband from the wife, it not being pretended that the defendant

Art. 9. Procedure and Trial.

paid anything for the conveyance. Div. 85, 51 N. Y. Supp. 804.

Wilson v. Coulter, 29 App.

Evidence offered by the defendant to show that the plaintiff's husband was engaged to another woman, it not being asserted that the plaintiff knew of this engagement, is not admissible. Wilson v. Coulter, 29 App. Div. 85, 51 N. Y. Supp. 804.

In an action for criminal conversation, evidence of complaints made by the plaintiff to other parties in the absence of defendant are not admissible. Boues v. Steffen, 43 St. Rep. 29, 16 N. Y. Supp. 819.

ARTICLE IX.

PROCEDURE AND TRIAL.

An action for criminal conversation is an injury to the husband's person which will warrant an arrest of the defendant. Straus v. Schwartwaelden, 17 Super. Ct. (4 Bosw.) 627.

Attachment may be granted under section 635, subdivision 3, of the Code of Civil Procedure, in an action brought by the wife for alienating affections of her husband. Rouge v. Rouge, 15 Misc. Rep. 36, 36 N. Y. Supp. 436, affirming 14 Misc. Rep. 421. It was also held that the court may fix the amount of the attachment at such sum as in its judgment will probably be recovered in the action.

The defendant may be arrested under the provisions of the Code for enticing away. Breiman v. Paasch, 7 Abb. N. C. 249.

By virtue of section 5 of the Code of Civil Procedure, the court may, in its discretion, exclude all persons not directly interested in an action, excepting jurors, witnesses, and officers of the court, from the trial of an action of criminal conversation.

In Servis v. Servis, 172 N. Y. 438, reversing 64 App. Div. 612, the action was brought by the wife against her husband's parents for alienation of his affection. The evidence was conflicting, and would have warranted the jury in finding that, if the husband ever had any affection for his wife, it had been alienated in some other way than by the act of defendants. Held, to be reversible error for the court to refuse to charge that, if, at the time of the abandonment, the plaintiff's husband never had any affection for her, or that it had been previously alienated, she could

not recover.

It is proper for the court to refuse to charge that the evidence is insufficient to justify a finding that the defendant and plain

Art. 9. Procedure and Trial.

tiff's wife committed adultery on any one of seven specified occasions, and it is proper for the court to charge in effect that, as to any one of the occasions as such appeared by itself, such instruction might be proper, but that in determining the issues they were to consider all the evidence and take into account all of the occasions, and if they found that the defendant had seduced plaintiff's wife and alienated her affections he was liable. Burdick v. Freeman, 120 N. Y. 420.

In an action brought against the father of a married woman for enticing her away, it is error to charge that the defendant is liable if he advises the wife to stay away from her husband, because a parent has a right so to do if the plaintiff is guilty of violent or immoral conduct. So, too, even if the parent acts on an honest belief that such is the case. Bennett v. Smith, 21 Barb. 439.

Where an action was brought by the husband against the wife's father for enticing away the wife, it was held proper to charge that, even if the husband's treatment of the wife was not corroborated in fact, yet if complaint were made to the defendant by the wife and others, which induced him to believe she was cruelly treated by the husband, and he acted in good faith in taking her to his house, the plaintiff could not recover. Smith v. Lyke, 13 Hun, 204. This is upon the theory that in actions for harboring the wife the material point of inquiry is the intention with which defendant acted.

If, in an action for criminal conversation, the plaintiff recovers less than $50 damages, the amount of his costs cannot exceed his damages. Code, § 3228, subd. 3.

In Smith v. Masten, 15 Wend. 270, a new trial was granted on the grounds of newly-discovered evidence, and on payment of costs where, on the trial, the plaintiff discovered that the defendant had lived in a state of adultery with another woman after his wife had left him and previous to the trial.

A judgment in an action for criminal conversation is not released by the defendant's discharge in bankruptcy. The action implies malice in law, a wrongful act done intentionally without just cause or excuse. A judgment recovered therein is for a willful and malicious injury to the person or property of another. Colwell v. Tinker, 169 N. Y. 531, affirming 65 App. Div. 20, 106 St. Rep. 505.

Art. 10. Damages.

ARTICLE X.

DAMAGES.

Punitive damages may be recovered in an action for alienation of affection as well as compensation for loss of support and maintenance. Warner v. Miller, 17 Abb. N. C. 221.

In Smith v. Masten, 15 Wend. 270, it was held that the courts have power to grant a new trial for excessive damages in cases of criminal conversation, though the court remarks that the power has never been exercised. Accordingly the court refused to set aside a verdict of $3,000 damages, although it appeared that the plaintiff had reason to know of the improper conduct of his wife, suspected her, and yet took no measures to prevent intercourse between her and the defendant.

In an action for alienation of affection, if it appears that the plaintiff did not desire the society of her husband, a verdict of $2,000 is excessive. Van Olinda v. Hall, 88 Hun, 452, 66 St. Rep. 711, 34 N. Y. Supp. 777.

In Wilson v. Coulter, 29 App. Div. 85, 51 N. Y. Supp. 804, a verdict of $1,750 was held not to be excessive where the action was brought by the wife against her sisters-in-law for alienation of affection.

In Bunnell v. Greathead, 49 Barb. 106, a verdict of $10,000 was set aside in an action where the plaintiff had witnessed the criminal conversation, but did not attempt to interfere. The court said: "If the evidence of the plaintiff did not bar the action, it certainly entitled him only to actual pecuniary damages which he sustained."

24

DEFINITIONS AND DISTINCTIONS.

SUBDIVISION 1. Nature of the action ...

2. Distinguished from seduction..

SUBDIVISION 1.

Nature of the Action.

370

372

Text-writers upon torts have variously included and excluded the action for breach of contract to marry from consideration. Thus, Webb's Pollock on Torts (Am. ed.), at p. 222, says: "The action for breach of promise of marriage, being an action of contract, is not within the scope of this work; but it has curious points of affinity with actions of tort in its treatment and incidents; one of which is that a very large discretion is given to the jury as to damages." The text-writer might have added the additional affinity: "the fact that the action dies with the person." See cases under "Civil Action Survival of Action."

At p. 686 Pollock cites the statement of LeBlanc, J., in Chamberlain v. Williamson, 2 M. & S. 408, that in these actions damages are "almost always considered by the jury somewhat in

poenam." Speaking of the anomalous character of the action for breach of promise to marry, the court, in Thorn v. Knapp, 42 N. Y. 474, said: "The action for the breach of contract of marriage, though