
    Lucy Orendorf, as Administratrix, etc., of Henry Orendorf, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    May 1, 1907.
    Negligence causing death.—-evidence of damage—ropen adultery of decedent’s wife may be shown ■—when error in charge not cured by withdrawal at request of counsel—-improper characterization of defendant’s servants by counsel.
    In an. action by a representative to recover damages for death- caused by the negligence of the defendant, it is error to exclude évidence that.the widow of . the deceased had not lived with him for many years and was living in open adultery. ■
    The recovery in such action must be a fair and just compensation for the pecuniary injuries to the widow and next of kin resulting from the decedent’s • death, and on that question the jury are entitled to know to what extent the deceased- would probably have contributed to. the financial'needs of the widow. Hence, as a husband is not required to support a wdfe who leaves him and lives'in adultery, that-fact is relevant on the question of damage.
    An error in the charge is not cured if the court on wilhdraW-ing the charge at the request -of the plaintiff, in whose favor it was made, indicates that it does so only at request of counsel, but sti-ll believes the charge to be the law.
    Repeated -reference by counsel to the defendant’s engineers and firemen as murderers is ground for reversal,
    Appeal by the defendant, The New York Oehtral. and Hudson Eiver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Herkimer on the lltli day of April, 19-06, upon the -verdict of a. jury for. $2,000, and also from an order entered in said clerk’s office on the 23d day of April, 1906, denying the defendant’s -motion-for a new trial'made upon the minutes.
    
      Gharles E. Snyder, for the appellant.-
    
      Ma/wriee A. Phelps, for the respondent.
   Robson, J.:

The cause of action, upon which plaintiff, as the administratrix of Henry Orendorf, whose widow she alleges she is, has recovered the judgment, from which this appeal is taken, is based upon the claim that intestate’s death was caused solely by the negligence of defendant. The answer raised the issues usual in such cases, and . among those which were actively litigated was the question of the amount .of damages which the widow and next of kin had in fact • sustained by reason of intestate’s death.

Plaintiff claimed to be the widow of deceased; but it was admitted on the trial that they had not lived together as husband and wife since 1890, and that from that tiine■ till his death deceased had contributed nothing to her support. In addition to this conceded fact defendant sought to prove .that plaintiff in 1890 lia.d been adjudged a common prostitute, and, as a result of the convic- ' tion, had been committed to the House of Refuge for Fallen ■ "Women, at Hudson, 1ST. Y.; that after her release and return to her former home she lived in open adultery with different men; arid that for three or four years before, and down to, and at the time of, decedent’s death she had been living in open adultery with one Haley. Hpon plaintiff’s objection each item of this proof, as offered, was excluded and defendant duly excepted.

Though we do not necessarily adopt the rule, expressed by some text writers (Joyce Dam. § 515; Elliott on R. R. § 1368) and recognized in some jurisdictions, that “ in case of a wife who was openly adulterous and living apart from her husband at his. decease no damages can be recovered,” because as it is'urged she is not under those circumstances entitled to the benefit of the statute which' was intended to protect honest widows and not as a reward' of the harlot or adulteress, yet we conclude that this evidence was. competent and its exclusion was error. It is but to quote from the statute, which furnishes the only basis for such actions, to say that the damages which can be awarded to plaintiff may be only such sum as is deemed “ to be a fair and just compensation for the pecuniary injuries, resulting from the decedent’s death, to the person or persons for whose benefit the. action is brought.” In arriving at the amount of their award the jury is supposed to be guided chiefly by their own good sense. (Birkett v. Knickerbocker Ice Co., 110 N. Y. 504.) But, as has been authoritatively said ;

“ They (the jury) are required to judge and not merely to guess, and, therefore, such basis for their judgment as the facts naturally capable of proof -can give should always be present and is rarely, if ever, absent. * * * The damages to the next of kin in that respect (i. e\, the value of a -human life) are necessarily indefinite, prospective arid contingent. They cannot be ¡Droved with even an approach to accuracy, and yet they are to be estimated arid awarded, for the statute has so commanded. . But even in such case there is and there must be some basis in the -proof for the estimate, and that was given here,- and always has been given. Human lives are not all of the same value to the survivors. The age and sex, the general health and intelligence of the person killed, the -situation and condition of the survivors and their relation to the deceased * * * furnish some basis for judgment-.” (Houghkirk v. President, etc., D. & H. C. Co., 92 N. Y. 219.) The net result of this statement of the law seems to be that the estimate of the actual loss.to the survivors by .reason of the death of deceased is to be gauged by proof ; on the trial, which so far as possible should disclose what, under all the circumstances, the deceased would probably have contributed to the financial and material benefit oí the survivors measured in money value, by the judgment of the jury thus enlightened. If this be a correct statement of the'law,:then it necessarily follows thatevery fact which tends to instruct the judgment ás to the actual or probable material benefit which- the survivors, entitled under the statute to share in a recovery of damages for the negligent billing of deceased, would have enjoyed had the deceased lived, is material. It was evidently due to a recognition of this principle that the concession was made by plaintiff that deceased had not contributed to her support since 1890. It is clear that this fact was material and relevant, and it seems that all circumstances connected with this material fact' either as an occasion of or reason for it, or as explanatory of its continuance-as a condition affecting the-relations-of the alleged widow and deceased during that time, would also be material. It is true that a husband is usually legally, as well as morally, bound to support his wife; and evidence limited to the fact of non-support, however long continued, might not be persuasive to a jury that the delinquent husband might not immediately recognize the obligation and again' . resume the relations which the law has imposed upon him.- But if - it be shown that the cessation of all' marital relations and renuncia-'. ", tion of all. marital obligations were coincident with, and apparently resultant from, the acknowledged, continuous and open violation by the wife of her marital obligation and duty, then no such presumption could be properly indulged. No legal obligation rests upon a husband to support a wife' who is living apart from him in open'adultery. If that adulterous relation exists ‘then the right of the wife to support ceases, and no proceedings for divorce are necessary to clothe the husband with a defense to any proceeding brought either by the delinquent wife or in the name of the People to enforce a claim for support. (People ex rel. Keller v. Shrady, 40 App. Div. 460; Bish. Marr., Div. & Sep. §§ 1228, 1230:) The evidence offered by defendant would have tended to prove as supplementing the conceded fact that deceased had not contributed to the support of plaintiff for upwards of fifteen years prior to his death, that she had by her own acts and conduct, continued to the day of his death, precluded herself from claiming from him any support during his life. The evidence was clearly of great importance in determining the loss which plaintiff, claiming to be- his widow, had sustained by his death. The suggestion that the next of kin should not suffer by reason of the moral obliquity of the widow lacks convincing force; because' we are not now concerned with the ultimate distribution of the recovery, if any should be had in this case, but only with the determination of the amount of actual damages which the widow and next of kin of deceased have suffered by his death; if defendant is liable to them for any amount. If no pecuniary loss has accrued to the widow by his death, or if that loss be less by reason of her own transgressions, then to that extent at least the amount for’which defendant might otherwise be liable would be reduced; and defendant should be accorded the advantage of presenting these facts for the consideration of the-jury which it must, under the circumstances be held, the' evidence offered would- have shown.

Plaintiff’s 'attorney bases ■ his argument in support of the action of the trial judge in excluding the testimony to which reference has been made, largely upon the fact that the plaintiff sues in a representative capacity, and urges that the rights and interests of possible creditors of deceased as well as of a dependent relative, other than the alleged widow and next of kin, might suffer, if evidence as to the widow’s indiscretions were admitted. It is doubtless a ' sufficient answer- to that suggestion- that they are in np way interested • in-the recovery, if- any shall eventually- he had.

Defendant also' assigns .as error certain portions of the charge of the trial-justice and certain expressions and statements made by him in connection therewith. It is necessary to refer to- but one of .these statements to which exception, was duly taken. Plaintiff’s, complaint in charging defendants negligence, to which it is alleged decedent’s, death', was due, specifies as one feature thereof tlie alleged negligent and careless. construction and maintenance of the gate at' the crossing where, decedent met his death.' The-learned trial justice charged'the jury at length to the effect that they might find defendant negligent because it had not erected and maintained a gate in the street north of the Mohawk and Malone -track, on which track decedent was killed. Exception by defendant was -duly, taken' to this portion of tlíé charge. The following colloquy between tlie court and counsel on the subject of the gates ensued: '“'Defendant’s Counsel: * * * We ask your Honor to charge the jury that in .view of the fact that the maintenance of the gate on the north side of the Mohawk & Malone track would necessarily bring the gate and posts some six feet into the traveled way in Albany street, the. defendant, on account of the amount of travel of horses, teams and vehicles at that place, cannot be charged with negligence in this case for not maintaining a gate on the north side of Albany street. The Court: ,1- ref use to charge, that, Defendant’s Counsel: We'.except. We ask your Honor to charge: the jury that the defendant could not move its gate's at the Albany street crossing to the north side- of the Mohawk & Malone track without consent of the village of Herkimer. ' The'-.Cdurt: I refuse to-charge that. * * * Plaintiff’s- Counsel: We are not contending that the defendant was guilty of negligence .for'the erection of this gate at all. ‘We do not-stand on that. It; is only the location of the gate in connection - with its operation. Now, if the jury find that its location, in connection with, this operation, on 'the night in question, was .not negligent, that is the one-question for the jury.. The Court: If.you desire it I will withdraw áll I have said ón the question of the gate. Plaintiff’s Counsel': I wish your Honor Would, That is all the question We make here. . The defendant has a right to set its gates wherever it likes. We have nothing to do with the authorities of the village of Herkimer. - The Court: On that suggestion I will withdraw all I have said on the subject of gates. Defendant’s •Counsel: We ask your Honor to charge the jury that there is no liability on the part of the defendant in this case because the gates at Washington street' were outside of the Mohawk & Malone track. Plaintiff’s Counsel: That-1 am-willing to have your Honor charge. ■ The Court: Well,'my ideas of this .case aré entirely different from • both of the -counsel. Plaintiff’s Counsel: . If' your Honor will charge what I regard as the. rule — The Court (interrupting) : I understand your position. In order to be consistent I shall have to charge that.” ' .

It is clear that plaintiff’s counsel strove to correct the error into which he manifestly conceived the court had fallen in the body of his charge on this point. If the court had been content to adopt the suggestion, and had charged the proposition on this subject, which counsel for plaintiff and defendant' both requested, and had absolutely withdrawn the objectionable portions of the main charge without further comment, it might perhaps be urged that the error had been corrected and that no' available exception to the charge on that ground remained to defendant. But the court’s withdrawal of the objectionable portion of the charge and the instruction -of the . jury at counsel’s request in effect that the law was directly, contrary to the instructions on that subject already given by the court was not distinct and absolute, but was qualified by the court’s statement that the ideas lie entertained were entirely different from those of both of the counsel whose views, however, he had just accepted and - charged as the law, which the jury were to apply in deciding the case. Such a qualified correction and retraction of an erroneous ' material statement in a charge does- not correct the original error. - In Meyer v. Clark (45 N. Y. 285) the court said(: “ A party is ■ entitled to á distinct charge without qualification or condition, if entitled at all. ~ A court has no right to break the force of. a charge by saying that, true he will charge so, but. still he docs not believe it to be law. The jury in such case may well act upon what the judge tells them he believes to be the law.. They may well say, the judge told us he believed- that to be the law; that he had-.no doubt of it; of course he knows what the law is. Why, then, should we not act upon the law as it is \ ” As in the case from which we have just quoted, the ohe'we are now considering presented a close question of fact. The jury might,. on all the evidence, excluding the question of location of defendant’s gates at this crossing as an -elm ment ripon which a fiuding'of defendant’s negligence could properly be predicated, have found that-defendant was not. negligent in its ' management, of the engine, which killed .the deceased. It is impossible to say they were not influenced to defendant’s prejudice in deciding this question by the charge of the. trial court on that, sul> ject'and the subsequent discussion, of court and counsel to which we ■ have referred. •

As the judgment and order appealed from must be reversed for errors, in the trial, to which we have already referred,' it is unnéces- ■ sary to make' more: than a. passing reference to the unwarranted . assertion made by plaintiff’s counsel when ■ submitting his. client’s case to the jury that the defendant’s engineers and firemen were • ■ murderers.' 'Counsel persisted in repeating, in effect at least,, this totally indefensible charge, even after'he had been warned by. the court that his statements were improper and the .jury had been instructed to disregard them. .We wish ■ emphatically to express our .disapproval qf. the action of counsel in this, regard, and if there - were, no other ground upon which a reversal of the judgment should • be based this álone would, in our judgment, amply suffice.

The judgment and order appealed from should be reversed and a-new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment and Order reversed and new'trial ordered* with, costs to the-appellanp to abide the event. • ’ . .  