
    Iva Manwarren, Resp’t, v. Mary J. Mason, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1894.)
    
    Evidence—Declarations.
    In an action for enticing away plaintiff’s husband, his declarations are not admissible against defendant.
    Appeal from a judgment entered on a verdict in favor of the plaintiff.
    
      Kennedy & Ross, for app’lt; James R. Shea, for resp’t.
   Hardin, P. J.

—According to the decision made by this court in Bennett v. Bennett, affirmed 116 N. Y. 584; 27 St. Rep. 679, the plaintiff is entitled to maintain an action against one who has enticed her husband from her, alienated his affections, and deprived her of his society. In Jaynes v. Jaynes, 39 Hun, 40, it was held “that a wife has a right to the conjugal society of her husband, for the willful violation of which by a third person she may maintain an action in her own name.” After a careful perusal of the evidence, we are of the opinion that it was the duty of the trial judge to submit the question of fact to the jury, and that he was warranted in refusing t.o set aside the verdict, as against evidence, at the close of the trial. Although the defendant, as a witness, contradicted many of the facts and circumstances which were sworn to by the plaintiff and her witnesses, we think, notwithstanding the conflict thus presented, that the trial judge was warranted in refusing to hold that the verdict was against the weight of the evidence.

2. In Winsmore v. Greenbank, Willes, 577 (decided in 1745), which was an action brought by a husband for enticing away his wife, it was held that “the declarations of the wife are not admissible” in such an action. In Boues v. Steffens, 43 St. Rep. 29 ; 16 N. Y. Supp. 819, in a similar action, ■ it was held that it was error to allow the plaintiff “to prove that he made complaints to other parties in the absence of defendantand it was also held that the error must have been injurious to the defendant, and the verdict there rendered was set aside. In Erben v. Lorillard, 19 N. Y. 299, it was held that a declaration of the plaintiff, while carrying on a conversation in respect to the purchase of land, as to his compensation, was not admissible as part of the res gestos. In Stickney v. Billings, 30 Hun, 304, it was held that declarations made by the plaintiff to his attorney in the absence of the defendant were not admissible. “ They were no part of the res gestae of any transaction had then and there with the defendants.” Upon the trial now under review the trial judge suffered the declarations of the husband of the plaintiff to be received, and conversations held by the plaintiff with him both before and after the commencement of the action. Such rulings received in evidence declarations which may have had a potential influence upon the jury in determining the critical issue arising in the progress of the trial. We are not at liberty, upon an inspection of the whole case, to say that the illegal testimony could not possibly have influenced the jury, or affected the result. Root v. Borst, 142 N. Y. 62 ; 58 St. Rep. 421; Stickney v. Billings, 30 Hun, 304, and cases cited in the opinion.

3. It may well be doubted whether the letter which was written by the plaintiff’s husband to her, and offered in evidence by the plaintiff, was admissible. Hobby v. Hobby, 64 Barb. 277. It was a declaration made by the plaintiff’s husband, and in the absence of the defendant, and forming no part of any transaction had between the plaintiff and the defendant. We think there should be a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event.

All concur.  