
    (81 Hun, 322.)
    AYER v. COLGROVE.
    (Supreme Court, General Term, Fifth Department
    October 17, 1894.)
    1. Seduction—Evidence—Promise op Marriage.
    In an action by a father for the seduction of his infant daughter, evidence that defendant told the girl that if she would have intercourse with him, and anything should happen to her, he would marry her, is admissible to show how the seduction was accomplished.
    2. Same—Other Acts—Hearsay.
    Testimony for defendant that one C. had told witness that he (C.) had the girl in the family way is not competent to prove that she had had intercourse with C.
    3. Same—When not Material.
    Where pregnancy was alleged to have resulted from the intercourse with defendant, evidence that the girl had intercourse with another man after the seduction, but before pregnancy, is incompetent.
    Appeal from circuit court, Allegany county.
    Action by Joseph W. Ayer against Nathan Colgrove. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.
    Argued before DWIGHT, P. J., and HAIGHT, LEWIS, and BRADLEY, JJ.
    H. H. Rely a, for. appellant.
    G. W. Harding, for respondent.
   HAIGHT, J.

This action was brought to recover damages for the seduction of the plaintiff’s infant daughter. The evidence given on behalf of the plaintiff tends to show that his daughter Ella was of the age of 17 years, and was living in defendant’s family as a servant; that in the month of February, 1887, she was seduced by and had intercourse with him, under the representation that, if she would let him have his wish, if anything happened he would marry her; that such intercourse thereafter continued until the 22d day of November, at which time she became pregnant, and was thereafter-delivered of a child, on the 9th day of August, 1888.

While it may not be material or competent to prove that there was an existing contract of marriage between the defendant and Ella, we think it was proper to show that such a promise was made in order to accomplish the seduction. Seduction is the act of. the man in inducing the woman to permit unlawful sexual intercourse with him. This may be accomplished by the use of seductive arts, such as flattery, solicitation, importunity, and promises.

On the trial, one Stewart was sworn as a witness for the defendant, and testified that one Dr. Crandall informed him that he had this girl in the family way. The plaintiff’s counsel asked the court to strike the testimony out. The court did not strike it out, but instructed the jury that “the testimony • of this witness is not to be considered by this jury as tending to show that this girl had had any relations with Dr. Crandall, or with any other man. It is as vicious as it can be, and is to be utterly disregarded by this jury as tending to prove any facts in this case of that character.” An exception was taken by the defendant to these remarks. We think the instruction was proper. The evidence was certainly incompetent. It was an attempt to establish that this girl had had improper relations with Dr. Crandall, not by testimony, but by the hearsay declarations of a person not under oath. It was vicious in this respect, and it was the duty of the court to instruct the jury to disregard it.

The defendant offered to show by one Butler and a Mrs. Martin that in September, 1887, Ella had illicit intercourse with Butler, at an hotel in Portageville. This evidence was excluded, and an exception was taken. The time to which this offer relates was after the alleged seduction, and before she became pregnant. It was not within the period of gestation. If it had been, it would have been proper, as tending to show that the pregnancy might have occurred in consequence of such connection. But, not being within the period within which the child could have been begotten, it was only material upon the question of the girl’s character; and it is-well settled that her conduct subsequent to the seduction cannot be inquired into for the purpose of affecting her character or in mitigation of damages. If she was chaste and virtuous prior to the time that the defendant accomplished her seduction and ruined her reputation, he cannot complain of her subsequent conduct, for it may well be attributed to his original wrong.

In the case of Boyce v. People, 55 N. Y. 644-646, similar evidence was offered and excluded. Allen, J., in delivering the opinion of the •court, says:

“The rejection could be sustained upon the ground that the offer was not limited to show an illicit intercourse at a time when the child could have •been begotten, and was, in effect, simply to show that, after the alleged ■seduction, she had been guilty of fornication with another person, which was clearly incompetent.”

In Holcomb v. People, 79 Ill. 409-414, similar evidence was offered, and it was said in reference thereto:

“In this class of eases an innovation has been made on the strict rules of cross-examination so far as to permit the defendant to ask the woman whether within the period of gestation she has had intercourse with other men, for the purpose of overcoming the probability of accused being the father.”

The evidence offered was held to be incompetent.

See Kenyon v. People, 26 N. Y. 203; Wood, Mast. & S. (1st Ed.) 497; 5 Waite, Act. & Def. 670; White v. Murtland, 71 Ill. 250-264; Shewalter v. Bergman, 123 Ind. 155, 23 N. E. 686.

In Young v. Johnson, 123 N. Y. 226, 25 N. E. 363, the evidence of the misconduct of the plaintiff was before the alleged assault was made upon her, and it was therefore proper.

The judgment and order appealed from should be affirmed. All •concur.  