
    Jessie D. Lund, Appellant, v. Anna B. Spencer, Respondent, Impleaded with Harriet Lund.
    
      Verdict — an order of the trial court setting it aside — what must be shown to justify its reversal.
    
    An order setting aside a verdict as against the weight of evidence, made by the judge who presided at the trial, will not be reversed unless it appears, beyond all cavil, that great injustice has been done to the defeated party.
    What evidence, given in an action brought to recover damages for the alienation of the affection of the plaintiff’s husband, is sufficient to justify the trial court in setting aside a verdict in favor of the plaintiff, considered.
    Appeal by the plaintiff, Jessie D. Lund, from an order of the Supreme Court, made at the Monroe -Special Term and entered in the office of the clerk of the county of Monroe on the 23d day of August, 1897, setting aside the verdict of a jury as to the defendant Anna B. Spencer and granting her a new trial.
    The defendant Anna B. Spencer is the mother of the defendant Harriet Lund, and thé plaintiff, who is the wife of one Charles J. Lund, brings this action to recover damages for the alienation, by the defendants, of her husband’s affection.
    The action was' commenced on the 29th day of April, 1896. A separate defense was interposed by each of the defendants, and the issues thus joined were tried at the Monroe Trial Term in February,
    1897. The jury rendered a verdict of $5,000 against the defend.ant Harriet Lund, and a separate verdict of $3,750 against her co-defendant. A. motion was thereupon made by the defendant Anna B. Spencer to set aside the verdict rendered against her. This motion was based upon all the grounds specified in section 999 •of the Code of Civil Procedure, and from the order granting the same this appeal is brought.
    
      Jblm D. Lynn, for the appellant.
    
      George Raines, for the respondent.
   Adams, J.:

Our attention has been directed by the respondent’s counsel to a number of exceptions taken during the progress of the trial to the .-admission of evidence which, it is contended, furnished of themselves sufficient reason for the granting of the order appealed from, and this contention is strongly fortified by the citation of numerous authorities. It appears, however, that the learned trial justice rested his decision solely upon the ground that the verdict was against the weight of evidence; and if he was justified in reaching that conclusion, it will be an unnecessary expenditure of time to review or even consider the case from any other standpoint. We shall, therefore, discuss briefly the question thus presented, and, as preliminary thereto, it may be well to suggest that the granting or refusing of a. new trial upon the minutes of the court is a matter which rests almost entirely in the discretion of the trial justice. (Barrett v. Third Ave. R. R. Co., 45 N. Y. 632; Bliss v. Fosdick, 76 Hun, 508 ; Glassford v. Lewis, 82 id. 46.)

' This discretionary power is doubtless one which should always be exercised with great caution, but it is, nevertheless, one which, as was said "in a recent case, ought perhaps to be more often exercised by trial courts for the proper protection of the rights and interests of litigants ” (Young v. Stone, 77 Hun, 395); and it is one which, from the very nature of things, cannot be controlled in its exercise by definite rules.

In one of the above citations (Barrett v. Third Ave. R. R. Co.), the principles which must govern in cases of this character were thus stated by Alleu, J.: “ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly-discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused, involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.”

If, then, we adopt the principles thus enunciated for our guide, it would seem to follow as a logical corollary that when, in the exercise of its discretionary power,.an order has been made by the trial court setting aside a verdict as against the weight of evidence, its determination ought not to be reversed by an appellate tribunal unless it is made to appear beyond all cavil that great injustice has. been done to the defeated party. (Bannon v. McGrane, 45 N. Y. Super. Ct. 517.)

With a view, therefore, to determining whether or not there has been an abuse of discretion in the granting of the order appealed from, let us briefly review some of the facts, of this case.

It appears that the plaintiff and Charles J. Lund were married in August, 1890 ;• that they lived happily together for some three years thereafter, when the husband formed the acquaintance of the defendant Harriet Spencer, and soon became enamored of her. Miss Spencer was a young woman possessed of some personal attractions, who resided with her parents at Spencerport, a small hamlet near the city of Rochester, Lund’s infatuation for this woman grew apace and was obviously reciprocated by her. After a time he found it convenient to visit her at her home in Spencerport, where he rvas cordially received and entertained by both Miss Spencer and her mother. His visits gradually became' more frequent, and it was. not an unusual thing for him to remain over night at the Spencer house, returning to Rochester in the morning. There is nothing in the evidence, hoAvever, to indicate that upon any of these occasions the relations between Lund and Miss Spencer partook of a criminal character; but he was evidently in love with her and she with him, and it is conceded that during this entire time she was aware of the fact that he was a married man and had a wife living in Rochester. Matters progressed so far that in August, 1894, Lund accompanied Miss Spencer and another young woman to a summer resort at a place called Glen Island ” at Bay Quinte, near Picton, in'Canada, where they remained for about a Aveek, occupying, a cottage by themselves.

Shortly after learning of this occurrence the plaintiff brought an action against her husband for divorce upon statutory grounos, naming the defendant Harriet Spencer as co-respondent, and charging her husband with having committed adultery with Miss Spencer during their sojourn at Glen Island. No defense Avas interposed to the plaintiff’s complaint in that action, and in February, 1895, a decree of absolute divorce was granted therein. In the month of June following Lund and Miss Spencer went to Canada where they went through som.e form of marriage, since which time they have continued to live together as husband and Avife.

From the time Lund first formed the acquaintance of Miss Spencer his demeanor toward his wife changed quite perceptibly. He treated her with coolness, avoided her society as much as possible, and endeavored to get her to go to Europe in order that he might be relieved of it entirely. In short, he virtually deserted her and transferred his affections and attentions to the woman with whom he is now living. Upon the trial of this action he made a pusillanimous attempt to extenuate his cruel treatment of his wife by charging her with improper conduct, but these charges were obviously unfounded, and it was established beyond all controversy that his affections were alienated from his wife without good cause, and that the defendant Harriet Spencer was in a large measure responsible therefor ; consequently, as against her, a perfect cause of action was proven.

Our > recital thus far of the leading facts in the history of this case and our statement of the conclusion to which they unerringly point, are virtually unchallenged.' But whether or not Mrs. Spencer participated-in the wrong done to the plaintiff and to what extent,, if at all, she must share her daughter’s responsibility,, are questions which are not quite so free from embarrassment.

That she was aware of Lund’s admiration for her daughter is not disputed, as indeed it could not ¡well be under the circumstances. She says, however, that she did not for a long time regard him in the light of a suitor, although the. diligence displayed by him iri the prosecution of his suit was suchas to leave little doubt as to his intentions in the minds of her friends and neighbors. Neither is it disputed that the daughter’s trip to Glen Island with Lund for a companion and a young girl of some eighteen years of age for a chaperon, was taken with.the knowledge of her mother, if not with her consent; and while this circumstance indicates a laxity of maternal solicitude for a daughter’s reputation which, is quite incomprehensible to the average mind, it does not necessarily establish or even tend to establish the fact that the mother was aiding her . daughter in an effort to' alienate Lund’s affections from his wife ; for she might have known of his affection for,, and even approved of his attentions to, her daughter', without being aware that he was a married man, and such she insists with much fervor was really the case. In the course of her examination during the trial she testified: “It was either the last of April ;or the first of May, 1.895, when first learned that my daughter and Lund were considering the subject of matrimony. She told me in her room that she did not know but what she might marry Hr. Lund in the course of the summer. I said I thought she was foolish, that there was another gentleman that I much preferred she would marry, and whom I long thought she would marry. * * * At that time I did not know that Hr. Lund was a married man. There was a time when I learned that he had been a married man. It was about three or four days before she was married. It was three or four days, I am not certain which, before she was married. Hy daughter told me that he had had an unfortunate marriage, but had a divorce. It was the 19th day of June, 1895, when my daughter was married to Charles J. Lund, and it was three or four days prior to that time that I first learned that he ivas a married man. I never had the slightest intimation previous to that time that he was a married man. It never entered my head that he had ever been married.”

These declarations seem at first blush almost incredible in view of the fact that Lund’s marriage was generally known and discussed among the inhabitants of Spencerport; but it appears that Hrs. Spencer was a person who confined- herself closely to her household duties and seldom mingled with her neighbors, which circumstance is relied upon to explain her ignorance of and indifference to village gossip. At all events, the case, if we except the testimony of a single witness, is destitute of any evidence, other than such as is purely inferential in its character, which directly contradicts her testimony; while upon the other hand she is corroborated by her daughter and other witnesses, as well as by the “ speech of people,” which characterizes her a respectable, unobtrusive and simpleminded woman.

The witness to whom reference lias just been made was a detective by the name of Parker, -who testified that he was at Hrs. Spencer’s house in August or September, 1894, in search of evidence • that he there saw a person whom he supposed to be Hrs.Spencer, and that in the course of a conversation with her he stated that Lund had a wife living in Rochester. This witness was flatly contradicted by Hrs. Spencer, who testified that he was never at" her house to her knowledge, and that she never saw him before he came upon the witness stand. We do not think that, under these circumstances, the evidence of this single witness possessed sufficient probative force to raise such an issue of fact as deprived the trial justice of the right to exercise his discretionary power to set aside a Verdict which in his opinion was clearly against the weight of evidence (New York & Lake Champlain Tr. Co. v. Hurd, 8 N. Y. St. Repr. 718; Durland v. Durland, 153 N. Y. 67); and while it is quite possible that another sitting in his place might have deemed it impracticable to pursue the course he did in the same circumstances, it must be borne in mind that he saw the witnesses, noticed their demeanor while upon the witness stand and heard them testify. He was consequently much more competent to judge accurately of the value and effect of their testihiony than are the members of a court of reviewand it is mainly by reason of this fact that the rule to which reference was made in the opening sentences of this opinion is so rigidly enforced.

We see nothing in the case which takes it out of the operation of that rule, and consequently we conclude that the order appealed from should be affirmed.

All concurred.

Ordér affirmed', with costs.  