
    James Cassin, Respondent, v. Lawrence Delany and Ann A. Delany, Appellants.
    Husband and wife. Where a tort or felony of any inferior degree is committed hy the wife in the presence, and hy the direction, of her husband, she is not personally liable; but, to exempt her, the presence of the husband and his direction must be concurrent.
    Evidence. Ebbor. In an action against a wife, for a wrong committed in the presence of her husband, testimony having been given tending to show that the wife acted of her own motion, it is competent for the husband to testify as to whether she acted under his direction; and, where his testimony is excluded, it is error, for which judgment against the wife in such action will be reversed.
    Power of General Term over erroneous judgments. New trial. There is no rule or provision of law by which judges at General Term are authorized to fix the amount of damages proper to be recovered by a person who has suffered from the malicious prosecution of another. If they find that the jury in the court below have erred in their judgment, the matter must be .referred to another jury, by directing a new trial. They have no power, in such case, to order the reduction of the verdict to a sum named by them, as the alternative of a new trial.
    The appellants are husband and wife. On the 21st day of November, 1855, Delany and wife procured'the arrest of the respondent, upon a charge of embezzlement, preferred before Matthew T. Brennan, Esq., then being one of the police justices of the city of New York. Upon this charge, Oassin entered into a recognizance for his appearance at the next Court of General Sessions, to be held in the city and county of New York. Delany and wife preferred their complaint before the grand jury at stich court, when the bill was dismissed. Oassin brought this action in the New York Court of Common Pleas, in 1856, claiming damages in the sum of $10,000, for a malicious prosecution and false imprisonment. The action was tried before a referee, who awarded $1,000 as damages to the respondent. From the judgment entered upon the referee’s report, an appeal was taken by the defendants to the General -Term of the Court of Common Pleas, when the judgment was deemed to be excessive, and a reversal was ordered, unless the respondent would stipulate to reduce the recovery to the sum of $250, which stipulation was accordingly given, and the judgment was affirmed. From this judgment an appeal is taken to this court by the defendants.
    
      Gilbert Dean, for the appellants.
    
      E. W. Dodge, for the respondent.
   Hunt, Ch. J.

The questions in this case are these:

1. Where a prosecution is maliciously instituted by a husband and wife, the latter acting in the presence and by the direction of the husband, is she personally liable for damages in such action ?
2. Is it competent to show, in such case, for the purpose of rendering her liable, that, in fact, the wife acted of her own motion, and not sub fotestaíe viri f
3. If competent, was there evidence of such independent action in the present case ?
4. Had the General Term power, when they decided the amount of damages found by the referee to be excessive, to order a reduction of the verdict to a sum named by them, as the alternative of a new trial, or was it their duty to have ordered such new trial, to the end that another jury might ascertain the amount of damages ?

The following authorities furnish the answer to the first two questions. (1 Hale’s P. C., 45 to 49; 4 Black. Com. 29 m ; 2 Kent’s Com. 149.) The authorities are clear, that, when a tort or a felony of any inferior degree is committed by the wife in the presence and by the direction of her husband, she is not personally liable. To exempt her from liability, both of these concurrent circumstances must exist, to wit, the presence and the command of the husband. An offense by his direction, but not in his presence, does not exempt her from liability; nor does his presence, if unaccompanied by his direction. His presence furnishes evidence, and affords a presumption of his direction, but it is not conclusive, and the truth maybe established by competent evidence.

In the present case, the plaintiff-furnished evidence, which was held, by the-referee, and by the General Term, to justify the finding, that the wife acted upon her own motion, and, although in his presence, was not sub fotestate viri. Assuming this to be so, the defendants complain, that they were not allowed to introduce evidence offered by them, of the game character. The defendant Lawrence Delany, being under examination, was asked by the defendants’ counsel this question: “By whose direction, if any one, did she make that charge ? ” This was objected to by the plaintiff’s counsel, and rejected by the referee, to which the defendant excepted. The witness might have answered, that it was by his direction, and under his authority, and this would have been evidence tending to discharge the wife from liability.

The same question was subsequently put to the defendant A.nn Delany, without objection, and she answered, “ that she made it by direction of her husband.” The referee, however, did not credit the witness, and found against her on this point. The exclusion of this evidence of the husband, which might have sustained that of the wife, and seriously have influenced the decision of the referee, was an error, for which the judgment must be reversed, and a new trial ordered.

I cannot concur with the action of the General Term, in deciding, that the amount of damages found by the referee was excessive, and assuming themselves to fix what would be a suitable amount to have been found by him. Excessiveness of damages is a well-settled ground for reversing a judgment. (12 Barb. 492; 19 id. 462; 3 Sandf. S. 0.19.) When the court reach the legal conclusion, that an error in that respect has been committed, it is their duty'to reverse the judgment, equally as if fraud or corruption had been established, or incompetent and material evidence had been introduced. There is no rule or provision of law, by which judges at the General Term are authorized to fix the amount of damages proper to'be recovered by a person who has suffered from the malicious prosecution of another. Such a proceeding is in hostility to any principle of the common law, as well as to our own system of practice and pleadings. If the court has erred in its decisions, or the jury has erred in its judgment, the matter must be referred to another jury, and their judgment, under better instructions, will give the correct response.

The General Term say, “ that the damages awarded are excessive; that the referee has evidently blended the damages arising from a former malicious proceeding by Lawrence Delany alone, with those received by the proceedings in which his wife was a party,” and order a reversal of the judgment, unless the plaintiff will reduce his damages to the sum of $250. How could the court, by any legal process of reasoning, ascertain, that just $750 was allowed by the referee for the first malicious proceeding? They say, that that proceeding “ really constituted the only serious injury sustained by the plaintiff at the hands of the defendants, either jointly or individually,” and they, therefore, order a deduction of $750. Why not order a deduction of $950 ? That would, in my judgment, be a more appropriate deduction upon the case as understood by the court below. But I do not see.how any judge of this court, or of the Hew York Common Pleas, is entitled to pass judgment upon this question: It is exclusively for the jury, or for a referee, who, by the consent of the parties, stands in place of, and exercises the same duties as, a jury.

In cases where specific items are presented upon contract, and can be passed upon, rejecting or sustaining the specific charge, this court and the courts below are in the habit of directing a reversal or affirmance, subject to the condition, that the party shall take their direction upon the questionable item. This, I have no doubt, is sound practice. It has never, however, been applied to cases where discretion on the part of the jury was allowed, or where the damages were for a tortious act of the party, or its consequences. Such was the holding of this court in Moffat v. Sackett (18 N. Y. 522).

Judgment should be reversed,e and a new trial ordered.

All concur.

Reversed.  