
    Martha Strock, Appellant, v. Hettie Russell, Respondent.
    Third Department,
    December 28, 1911.
    Husband and wife — alienation of affection — criminal conversation — evidence — good faith of defendant — presumptions — nominal damages — charge — harmless error.
    In an action for alienation of affection brought by a wife against another woman who had married the plaintiff’s husband in a foreign State, a letter from a judge of that State stating that a divorce from the plaintiff obtained there by her husband was valid, which letter was shown to the defendant before she married him, is admissible in evidence under a general denial. This, because in such action the good faith of the defendant is material.
    
      It seems, that such letter would not be admissible in mitigation of damages without a special plea.
    
      It seems, that section 831 of the Code of Civil Procedure makes the wife of the plaintiff in an action for criminal conversation an incompetent witness for him in order to prevent collusion between husband and wife. Quaere, as to whether a wife may sue another woman for damages founded wholly upon criminal conversations with her husband.
    In an action for criminal conversation brought by a husband against another man, the mere act of adulterous intercourse raises d presumption that the defendant induced the wife to the act. But no such inference exists in a similar action brought by a wife against another woman. Even though the plaintiff in an action for criminal conversation be entitled to nominal damages, a verdict of no cause of action will not be set aside for that reason. Hence, where the jury has found that the plaintiff has no cause of action, an error in refusing to charge that mitigating circumstances will only be considered in reduction of exemplary damages, is immaterial.
    Kellogg and Sewell, JJ., dissented, with memorandum.
    Appeal by the plaintiff, Martha Strock, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 12th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of May, 1910, denying the plaintiff’s motion for a net/ trial made upon the minutes.
    
      W. E. Knapp, for the appellant.
    
      John Bull, Jr. [David N. Heller of counsel], for the respondent.
   Smith, P. J.:

Plaintiff in. her complaint charged the defendant with having alienated the affections of her husband by having debauched and lived in adulterous, intercourse with him as his alleged wife, from the Mth day of January, 1908, until the 2Qth. day of November, 1908. Without objection, on. the part, of the defendant the case was tried as upon a general charge for alienating the affections of plaintiff’s, husband, except, that defendant claimed the action to. be one for1 criminal1 conversation, which could not be' maintained by a wife: To support the plaintiff’s

contention evidence was. given without objection of facts, occurring prior to 1.908., The issue as. thus, agreed uponis, therefore, the issue which must determine the competency and relevancy of the evidence given.

The plaintiff’s husband, Guy Strock, first left her in 1899., He was, gene some eight or nine years. ' While he. was gone it is claimed, that, he procured a divorce in the State of Missouri. This; divorce, however, was- obtained without, jurisdiction of this plaintiff. In 29QT, when his daughter was- sick, he returned Jo Jackson Summit, where his wife and daughter were living- He remained several, months, at. that place.. The plaintiff claimed that they were living as husband, and wife, vrMeb the defendant, demies. Soon after the daughter’s- death the hnsbandlefttheplaintiff. He was thereafter fined seventy-five dollars for non-support, which he paid.. In January, 1908, Guy Strock went with the defendant to the State of Missouri, and they there went through a marriage ceremony. They came back to the county of Chemung and thereafter lived as husband and wife.- The defendant, offered in evidence, upon the trial, a letter, which purported to, be. a letter from. a. Circuit judge in the State of Missouri, stating that the decree of divorce obtained by Guy Strock. from Ms. wife, was a valid decree. This- was shown to have been called, to the attention, of the defendant before -her marriage • to Guy Strock in. January, 1908. .To this evidence objection was made that it was-not pleaded. This objection was overruled and an exception taken. " If this evidence were admissible only for the purpose of mitigating damages I think it could not he shown, without a special plea. (Code Civ. Proc. §' 536; Bradner v. Faulkner, 93 N. Y. 515.) But in -an action for alienation of affections the good faith of the defendant is a material question. (Van Olinda v. Hall, 88 Hun, 452; Smith v. Lyke, 13 id. 204; Barnes v. Allen, 1 Abb. Ct. App. Dec. 111.) Inasmuch, therefore, as the good faith of the defendant was one of the main issues in the case, evidence thereof was admissible under a general denial and without special pleading. The questions were fairly submitted to the jury, both whether the plaintiff’s husband was in fact enticed away from the plaintiff by the defendant, and whether such act was done intentionally. The jury has found with the defendant upon these questions- It is true that the court charged that the plaintiff was in any event entitled to nominal damages. This we assume was upon the theory that the plaintiff was entitled to maintain an action for criminal conversation. As a matter of first impression I should be inclined so to hold. By section 831, however, of the Code of Civil Procedure it is provided that in an action for criminal conversation the plaintiff’s wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant as to any matter in controversy, except as to the disclosure of confidential communications. The purpose of this exclusion would seem to be to prevent collusion between husband and wife. If such be the purpose of the section it is difficult to •understand why the husband also should not be disqualified to testify in behalf of the wife in such an action, if such an action will lie in behalf of the wife. Is not this section in fact a legislative declaration of the law that such an action will not lie in behalf of the wife ? In an action by the husband against another man, the mere act of adulterous intercourse raises a presumption that the defendant induced the wife to such an act. Ho such inference could be indulged in in an action by a wife against another woman for having had adulterous relations with her husband. But it is unnecessary to decide this question in this case. Even though plaintiff were entitled to nominal damages, a verdict of no cause of action would not be set aside for that reason.

In this view of the case the refusal to charge that mitigating circumstances could only be considered by the jury in reduction of exemplary damages is immaterial, by reason of the conelusion of the jury that the plaintiff was without any cause of action.

The judgment should, therefore, be affirmed, with costs.

. All concurred, except Kellogg, J., dissenting in memorandum in which Sewell, J., concurred.

Kellogg, J.

(dissenting):

The plaintiff was married to Gruy Strock in 18 Y 8 and they lived together for twenty-one years, had five children, two of whom are now living. In 1898 he left her. In April, 190Y, he returned to her, and they lived together as husband and wife, and she was pregnant by him. She discovered that he was paying attention to the defendant. She called upon the defendant August 28, 190Y, informed her that she and her husband were living peaceably together, and that she was pregnant by him, was weak and needed his care and attention, and she wished the defendant would let him alone; defendant promised that she would give no further trouble and that she would let him alone. On the twenty-eighth day of September following he again left her. In October he was seen working upon the defendant’s farm, and was living there apparently as a hired man.. On January twelfth he and the defendant went to Missouri and were married and then returned to the farm where she previously resided.

'There is no reasonable" dispute in the evidence as to these facts. I think they show that the defendant enticed the plaintiff’s husband away and has committed a grievous wrong towards her. By remaining with the plaintiff, this poor laboring man only had a wife; by going with the defendant, he not only had a wife but a farm and a home. If Buchanan v. Foster (23 App. Div. 542) is antagonistic to these views, I do not feel like following it. I think the defendant clearly liable tipon the evidence, and the only question is one of damages. I favor a reversal upon "the ground that the judgment is against the evidence.

Sewell, J., concurred.

Judgment and order affirmed, with costs.  