
    Mary A. Sharpley, Resp’t, v. Frank Brown et al., App’lts.
    
      (Supi'eme Court, General Term, Third Department,
    
    
      Filed November, 1886.)
    
    1. Civil Damage act—What may be proved to diminish damages.
    Where a woman sued under the civil damage act for damages for loss of means of support on account of her first husband’s death from intoxication: Held, that the defendants. could put in evidence the fact of the second marriage for the purpose of diminishing the damages.
    2. Same—Mother cannot recover for damage to children.
    The mother in a suit for loss of her means of support, cannot recover for any damages which the children had sustained.
    
      FArnoreaux & Bake, for resp’t; Boyle & Fitts, for app’lts.
   Learned, P. J.

In Volans v. Owen (74 N. Y., 526), which was an action for injury to “means of support,” the court say that the accustomed means of maintenance must have been cut off or curtailed; and that “diminution of income or loss of property does not constitute an injury to means of support within the fair intendment of the statute, if the plaintiff, notwithstanding, has adequate means of maintenance from accumulated capital or property or his remaining income is sufficient for his support.

This remark shows that actions under the so-called civil damage act are different from those under which a large number are cited by the plaintiff’s counsel, as for instance, Terry v. Jewitt (78 N. Y., 338); Kellogg v. N. Y. Central (79 N. Y., 72), and the like.

In actions for common law injuries to the person the damages would not be diminished by the possession of “accumulated capital or property ” by the injured person. But in this class of actions the court say such possession not merely might diminish the damages, but might altogether defeat the action. Stevens v. Cheney, 36 Hun, 1.

Now the possession of another husband might be as useful to this plaintiff as the possession of “ accumulated capital or property,” so far as the means of support were concerned. It is true that she could not have been in possession of another husband at her first husband’s death. But if shortly after her first husband’s death she had come into the possession of such property as gave her an ample support, it seems to us, under the' decision above cited, that this might have been shown upon the trial. Evidently the possession of such property at the husband’s death may be shown, notwithstanding the possibility that the property might afterwards be lost or become worthless. So, it seems to us, as the court have said, that the primary purpose was the protection of the dependent and helpless, that it is material to show to what extent the plaintiff is dependent and helpless.

This is a cause of action unknown to the common law, and cannot be made analogous to other actions. The plaintiff evidently thought the evidence of the second marriage was proper, because she made no objection to it when given. It was subsequently stricken out by the court, the plaintiff saying that she did not ask to have it stricken out; and an offer of similar evidence was afterward made, and the evidence was excluded.

To illustrate, let us suppose that the husband had not died but had only been disabled from working by his intoxication, and that plaintiff had sued for loss of means of support. Would it not be material on the question of damages to show that she had left her husband and was living with and supported by another man ? So in the present case, she is (but lawfully), living with and entitled to the support of another man, her present husband. Does not this condition affect the extent of injury to means of support which she suffers by the former husband’s death %

Objection is also made as to proof that plaintiff had six children. The court very properly held that the plaintiff could not recover for any damages which the children had sustained. In looking at the testimony objected to we find that it was brought out on cross-examination by plaintiff’s counsel; and that the defendant’s counsel had previously inquired as to the condition of the family of the deceased prior to his death, how they were clothed and fed. Now it might be material and proper as tending to show whether the deceased failed in respect to his duty, for plaintiff to' prove how large the family wTas. And under the circumstances we think there was no error in this respect.

Without examining the other questions which are presented we are of the opinion that the evidence of the marriage of the plaintiff to another husband should not have been stricken out and that defendant wras entitled to have that considered by the jury on the question of damages.

Judgment and order reversed and new trial granted costs to abide event.

Landon, J., concurs._  