
    Agnes Mary Hendrick, Respondent, v. Laura Biggar, Appellant.
    Second Department,
    June 14, 1912.
    Husband and wife —alienation of affections — evidence —judgment roll in prior action for divorce — excessive verdict.
    Where in an action for divorce the corespondent appeared by attorney but did not serve an answer, the judgment roll may be introduced in evidence in a subsequent action brought by the plaintiff against the corespondent to recover damages for the alienation of the affections of her husband, for the purpose of showing the conduct of the plaintiff’s husband and the corespondent.
    Where one comes into a divorce action by voluntary appearance as a ■ corespondent, .a decision and judgment in that action are admissible in evidence thereafter against him as to any material facts affecting his conduct which were decided in the action as basis for the entry of a judgment.
    Verdict for $50,000 in an action for alienation of affections, held, excessive, and reversed unless reduced to $80,000.
    Appeal by'the defendant, Laura Biggar, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office .of the clerk of the county of Kings on the 14th day of April, 1910, upon the verdict of a jury for $75,000, which was reduced by stipulation of the plaintiff to $50,000, and also from an order entered in said clerk’s office on the 5th day of April, •1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Samuel I. Frankenstein, for the appellant.
    
      Charles Goldzier [Moses H. Grossman with him on the brief], for the respondent.
   Carr, J.:

The defendant appeals from a judgment entered against her in the Supreme Court in Kings county on the verdict of a jury in favor of the plaintiff. The action was brought by the plaintiff to recover damages against'the defendant for the alienation of the affections of the plaintiff’s husband,.and loss of consorr tium, through the alleged malicious acts of the defendant. The jury found a verdict in favor of the plaintiff in the sum of $75,000, which was reduced by the trial court to $50,000 under a stipulation of the plaintiff. A judgment was entered upon the reduced verdict, and from it this appeal has been taken.

The plaintiff’s husband was a physician, who resided in the State of New Jersey, where she lived with him for some time. He had a position as a health inspector in the town in which they lived. According to the plaintiff’s testimony, he came to her one day, when she was pregnant with child, she having already several small living children, and he told her that smallpox had broken out in the neighborhood and there would' be great danger to her and her children, as he had to go among the people affected with that disease. He advised her to leave her residence and go to live with her mother until the plague had disappeared. She did so. While she was absent she sent him several letters which he answered, and then to several of her later letters came no answer. She read in the newspapers that he had been arrested together with one Laura Biggar, an actress, who is the defendant herein, on some criminal charge, . and was confined in jail at Freehold, N. J. She went to the jail and saw the defendant and her husband there. Recriminations took place between the wife and husband in the presence of the defendant. The defendant and the plaintiff’s husband were discharged from custody, but the husband did not return to the plaintiff. According to her story, she went to some theater in New York city where the defendant was performing, was admitted to her dressing room, and the defendant informed her that the husband would not return to her, the plaintiff, but declared that he would, live with her, the defendant, and she offered to the plaintiff to pay the rent of a small flat to be' occupied by the plaintiff while she, the defendant, was living with the plaintiff’s husband. The plaintiff likewise testified that before the disappearance of the husband under the pretext of smallpox having broken out in the neighborhood, their domestic life had been a happy one. The defendant produced witnesses who testified to the .contrary. As .to this question, the issue was for the jury, and their finding for the plaintiff cannot be said to be against the weight of evidence. As a part of the plaintiff’s proof, to show the conduct of the defendant, and her husband, she offered in evidence a judgment roll in which a divorce for adultery was decreed in her favor against the husband, which decree was based upon findings of the Supreme Court in Kings county that the husband committed adultery with one Laura Biggar át various times and places, which times were subsequent to the departure of the husband from the plaintiff’s household. The complaint contained an allegation of the adultery of the husband with Laura Biggar at various times and places. Proof was given that Laura Biggar appeared in the action by attorney, who served - a notice of appearance but served no answer to the. complaint. The chief ground presented on this appeal is, whether it was error to admit this judgment roll against the defendant in this action. The judgment roll was not admitted in evidence as a bar against the defendant Laura Biggar in favor of the plaintiff as to the cause of action set forth in the complaint in this action, but simply as evidence in support of the cause of action, as showing an adjudication, as to certain conduct between the plaintiff’s husband and the defendant Laura Biggar. The learned trial court instructed the jury repeatedly and quite fully that, from the mere fact that Laura Biggar had committed adultery with the plaintiff’s husband, a verdict could not be rendered in favor of the plaintiff in this' action. They were instructed that they could consider the fact of the alleged adultery in combination with such other facts as were shown by the plaintiff to establish the alienation of the affections of the plaintiff’s husband by the defendant Laura Biggar. It seems to us that there is no question whatever that, if it were shown in connection with the other facts proved by the plaintiff, that Laura Biggar and the plaintiff’s husband had been guilty of adultery, the evidence would have been entirely competent as tending to support the claim of the . plaintiff as to the alienation of the affections of her husband. This action did not resolve itself into a trial for crim. con., for the materiality and effect of the charges of adultery were carefully explained to the jury by the trial court. So, then, we are brought to an examination of the question whether or not the judgment roll in the divorce action was admissible as evidence of the commission of the .acts of adultery between the plaintiff’s husband and the defendant Laura Biggar. A judgment roll may be admissible as evidence of the facts adjudicated in an action, even where it may not be admissible as a complete bar. (Krekeler v. Ritter, 62 N. Y. 372.) Such is the rule here were Laura Biggar to be considered as a party to the divorce action. She was not named as a party defendant in the summons nor in the complaint in that action. She was, however, named in the complaint as the person with whom the various acts of adultery had been committed, and in that respect she was the corespondent in the action. Under section U57 of the Code of Civil Procedure it is provided that the plaintiff may serve a copy of the summons and complaint in a divorce action on the corespondent named therein, and that such person may appear in the action either in person or by attorney and “may appear to defend such action, so far as the issues affect such corespondent.” The defendant in this action did not need to appear in the divorce action, nor to present any defense, but she had- this privilege, and if she did appear therein she became to all practical purposes a party to the action. She had the right to answer and the right to appear at the trial, and cross-examine witnesses and object to and except to the admission of evidence, and to take an appeal from any judgment that was rendered based upon a finding that she was the person with whom the defendant in that action had committed adultery.

It should be the rule, and we think it is, that. where one comes into a divorce action by voluntary appearance as a corespondent, a decision and judgment in that action are admissible in evidence thereafter against him as to any material facts affecting his conduct which were decided in the action, as basis for the entry of a judgment. It is urged that it has been held to the contrary in Boiler v. Boiler (111 App. Div. 240). That authority does not seem to us in point, for while there is considerable discussion in the majority opinion of the court in that case as to the status in a divorce action of a corespondent who had appeared therein after a trial was had, and at which he had testified as a witness, all that was actually decided was that a corespondent who appeared in such an action under such circumstances was • not entitled to have the trial reopened in order that an entirely new trial of the issues might be had. Even from that decision there was a strong dissent by two of the justices.

It is unnecessary to consider here whether the judgment in the divorce action was conclusive ór prima facie evidence. For here the defendant did not attempt to give any evidence to rebut the chargesof adultery. So, if the judgment roll was simply prima facie evidence, there being no attempt to rebut the evidence, it would have become, so far as the jury were concerned, . conclusive evidence on the trial as to the acts in question. The judgment in this action is a large one, even as it stands,' and, under the facts shown in the record, apparently excessive. In cases of this class there is a large measure of discretion in the jury as to the amount of damages, and a verdict is not to ' be interfered with lightly on the claim that it is excessive. At the same time it is the duty of the trial court and of this court to consider such question wherever it arises properly. Every case of this character is somewhat a rule unto itself.

We thmb that the judgment and order should be reversed and a new trial granted, costs to abide the event, on the ground that the verdict was excessive, unless the plaintiff stipulate within twenty days to reduce the damages to the sum of $30, 000, with interest, exclusive of the costs taxed .on the entry of the judgment; in which event the judgment as so reduced and the order are affirmed, without costs of this appeal.

Present—Jenks, P. J., Hirschberg, Thomas,Carr and Woodward, JJ.

Judgment and order reversed and new trial granted, costs to abide the event, on the ground, that the verdict was excessive, unless plaintiff stipulate within twenty days to reduce the damages to the sum of $30,000, with interest, exclusive of the costs taxed on the entry of the judgment; in which event the judgment as so reduced and the order are unanimously affirmed, without costs of this appeal.  