
    Charles A. Burdick, Resp’t, v. Sylvanus D. Freeman, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Criminal conversation—Charge.
    In an action for criminal conversation and alienation of the affections of plaintiffs wife, the question is did defendant seduce the plaintiffs wife, entice her from home and harbor her, and his liability does not depend upon the fact as to. whether any one of several alleged acts of adultery had been committed, and it is hot error for the court to refuse to instruct the jury that this or that alleged act, taken by itself, was not established.
    3. Appeal—Exception to portion oe charge.
    Where an exception to a charge is general, all of which charge except a certain sentence was unexceptionable, defendant cannot select out a certain sentence, which was not excepted to on the trial, as a ground for reversal of the judgment.
    3. Jurisdiction—Parties residing in another state.
    The courts of this state may, in their discretion, entertain jurisdiction of an action for the recovery of damages for personal injury between citizens of another state actually domiciled therein when the action was begun and tried here, though the injury was committed in the state of their residence and domicil.
    (Overruling Molony v. Dows, 8 Abb. Pr., 316, and Latourette v. Clark, 30 How. Pr., 343.)
    Appeal from a judgment of the general term of the supreme court of the fifth judicial department,, affirming a judgment entered on a verdict.
    
      Oharles B. W heeler, for app’lt; Tracy G. Becker, for resp’t.
    
      
       Affirming 10 N. Y. State Rep., 756.
    
   Follett, Oh. J.

This action (begun February 19, 1885) is for criminal conversation, and the defendant’s liability depended upon the determination of a single issue of fact, namely: Did he seduce the plaintiff’s wife, entice her from home and harbor her ?

In November, 1884, the wife left the plaintiff, since which they have lived apart. The defendant denied that he induced the separation, or advised her to live apart from her husband; but admitted that some time after the separation he began to assist her to maintain herself, and had continued the assistance down to the trial.

The plaintiff sought to prove that the defendant and his wife had adulterous intercourse on several occasions, and gave evidence of frequent and intimate association, and of opportunities for adultery on many occasions.

The defendant requested the court to instruct the jury that the evidence was insufficient to justify a finding that the defendant and the plaintiff’s wife committed adultery on any one of seven specified occasions. The court refused so to charge, and, in effect, instructed the jury that if any one of the occasions stood apart by itself the instruction might be proper; but that in determining the issue they were to consider all of the evidence, and take into account all of the occasions; and if they found that the defendant had seduced the plaintiff’s wife and alienated her affections, he was liable.

The issue upon which the liability of the defendant depended was not whether any one of several alleged acts of adultery had been committed; and it was not error for the court to refuse to instruct the jury that this or that alleged act, taken by itself, was not established.

When the evidence is, as a matter of law, insufficient to authorize a finding that the fact in issue is, or is not established, it is the duty of the court to so instruct the jury; but it is not ordinarily its duty to instruct the jury whether the evidence is or is not sufficient to authorize them to find that a mere evidentiary fact asserted by one party, but denied by the other, exists, or does not exist.

The plaintiff’s counsel requested the court to charge that: “ Although her (the wife’s) affections might have been alienated in the first instance, yet if she left the plaintiff and the defendant harbored her, maintained and enticed her contrary to the wish of the plaintiff, the plaintiff can recover.”

The court: “ I did charge that almost in the same language.” Plaintiff’s counsel: “ I think your charge was that the affections must have been alienated by the defendant.”

The court: “ I say this; that if the woman without the intentional aid of the defendant; if this woman’s affections were alienated from her husband so that she had not any affection for him, and that she was determined to and did leave her husband because she hated him or because he had abused her; then the defendant is not liable for alienating her affections, because he did not alienate them if that was so. But if her husband maltreated her and the doctor interfered and he helped get her away from the husband, then he is liable. He would not be liable, that is, the jury would not be likely to give the plaintiff as much damages in such a case if he by his own misconduct had almost thrust his wife away. They would not be likely to give him as much damages as they would if he was a kind and affectionate husband, and somebody came in and broke up the family.”

Defendant’s counsel; “That is excepted to.”

The defendant urges that the rule of law applicable to the issue is not expressed by the sentence: “ But if her husband maltreated her and the doctor interfered and he helped get her away from the husband, then he is liable.”

The fact that a specific exception was not taken to the sentence now challenged as erroneous, is a sufficient answer to the defendant’s contention. The exception was general, and related to the part of the charge first above quoted, all of which, except the sentence last quoted, was unexceptionable, and the defendant can not on appeal select out a single sentence which was not excepted to on the trial and successfully urge it as a ground for a reversal of the judgment. It is not entirely clear from the context that this sentence is printed as it was delivered, or as it was understood.

After the court had concluded its charge the defendant asked that the jury be instructed: “That the plaintiff cannot maintain this action in the courts of this state, and that this court has no jurisdiction of this case.” This request was refused and the defendant excepted. This action was for the recovery of damages for a personal injury. Code Civ. Pro., § 3343, subd. 9. The courts of this state may, in their discretion, entertain jurisdiction of such an action between citizens of another state actually domiciled therein when the action was begun and tried, though the injury was committed in the state of their residence and domicil. Gardner v. Thomas, 14 Johns, 134; Johnson v. Dalton, 1 Cow., 543; Dewitt v. Buchanan, 54 Barb., 31; McIvor v. McCabe, 26 How., 257; Newman v. Goddard, 3 Hun, 70; Mostyn v. Fabrigas, 2 Smith’s Leading Cases, 9th ed., 916; Story Confl. Laws, § 542; Whar. Conf. Laws, §§ 705, 707, 743; 4 Phil. Int. Law, 701.

The judgments in Molony v. Dows, 8 Abb. Pr., 316, and Latourette v. Clark, 30 How. Pr., 242, in so far as they hold otherwise, must be regarded as overruled.

The defendant had not left the state of his residence, nor had he removed his property therefrom when this action was begun, and we find no sufficient reason for prosecuting it in the courts of this state. But this action has been pending for a year, and the question as to whether the court should entertain jurisdiction had not been raised by answer, by special motion or during the trial, and we think that while the supreme court might, in the exercise of its discretion, have refused to entertain the action, or dismissed it on its own motion, yet the defendant not being entitled to a dismissal as a matter of right, ought not to be permitted to lie by until the close of the trial, when its probable result could be inferred, and then successfully invoke the exercise of the discretion of the court in his favor.

The judgment should be affirmed, with costs.

All concur, except Bradley and Haight, JJ., not sitting.  