
    Henry Boues, Resp’t, v. Aloys Steffen, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Chimin ai conversation.
    In an action for enticing away plaintiff’s wife and debauching her, plaintiff testified that his wife had been a servant of defendant when he married her; that defendant persuaded her to remain in his service; that plaintiff had seen acts of familiarity between his wife and defendant, and had seen her in defendant’s bed. This was contradicted both by the wife and defendant. Held, that the plaintiff’s testimony was open to grave criticism, and was so thoroughly contradicted that the jury should have regarded it as unworthy of belief.
    2. Same—Evidence.
    In such an action evidence of complaints made by plaintiff to other-parties in the absence of defendant is inadmissible.
    Appeal from judgment in favor of plaintiff.
    Action brought by plaintiff for the alleged enticing away of' his wife, from him as a first cause of action ; and for debauching-his wife as a second cause of action.
    Plaintiff’s wife prior to the marriage was a cook in the employ of defendant, who was a Roman Catholic priest.
    Plaintiff testified that after his marriage the defendant asked, plaintiff to let his wife stay there a few days, until he got another cook, which he did, and that in a few days he asked Steffen whether he had a cook, and Steffen said he had one, but did not. want her, and then he asked plaintiff to stay one night, to which he objected but finally consented, and then that plaintiff and his-wife should sleep separate ; that on December 15, 1890, Steffen and plaintiff’s wife went to Middle Village in one wagon and. plaintiff in another wagon, at defendant’s suggestion, rode home-same way but plaintiff got home one-half hour before. On the following day she was sick in the defendant’s bed and defendant sat on the edge of the bed and was kissing her; that on January 5th he was in the kitchen kissing her; that on January 8th, he, the plaintiff, went to his wife’s room about 2 o’clock in the morning,, .and found that no one had occupied the bed that night, and then heard the defendant and his wife conversing in the defendant’s bed room ; he then went down stairs and knocked on the kitchen door, and it is admitted that the defendant then came down with a pistol in his hand and that the plaintiff asked him “ where is. my wife,” to .which the defendant answered he did not know; that they made a trip to New York city together; in March she was again in the defendant’s bed and claimed she was sick; on March 26th he asked the defendant to send his wife home and was refused; plaintiff told the defendant he was going to move and defendant told him his wife would not move with him; and on May 26th defendant threatened to have him arrested if he-moved any of the furniture from his residence; on May 26th defendant went to plaintiff’s house and when plaintiff said he would sue him, he called him a greenhorn, and said he could do nothing ; that on one occasion she was lying in defendant’s bed, and the defendant was the only other person in said room, and upon the witness entering the room, he covered her up, saying she should look out and not catch cold; plaintiff’s wife would go up to defendant’s room alone to say good-night to him, and would generally remain one-half hour; defendant also made a trip to Philadelphia with plaintiff’s wife, and remained there over night stopping at a hotel.
    Plaintiff’s testimony as to acts of familiarity was directly denied by defendant and by plaintiff’s wife.
    
      Albrecht J. Lerche (Thomas F. Byrne, of counsel), for app’lt; Oscar Richter (Howard A. Sperry, of counsel), for resp't.
   Pratt, J.

The verdict rendered by the jury finds some support in the testimony of the plaintiff, and it is probable that a nonsuit at the close of plaintiff’s case would not have been sustainable. But the testimony .was open to grave criticism, and had the cause been decided upon the plaintiff's testimony simply, the jury might well have hesitated before basing upon it a verdict

The evidence introduced by defendant fully contradicted that of the plaintiff.

The witnesses were numerous, and, with the exception of defendant and Mrs. Bones, were without interest in the result.

Much of their evidence is not to be reconciled with that of the plaintiff, and we are not able to see how he can be believed unless many others are to be discredited. Some part of his evidence may perhaps be explained on the ground of ignorance, but a great part we think must be ascribed to a deliberate desire to misstate the truth. So thoroughly contradicted was he that we think the jury should have regarded his testimony as unworthy of belief.

Upon the whole case it is clear the verdict should not be allowed to stand.

The plaintiff was allowed to prove that he made complaints to other parties in the absence of defendant

That was error and must have been injurious to defendant

Verdict set side, judgment reversed, new trial ordered, costs to abide event.

Dykman, J., concurs; Barnard, P. J., not sitting.  