
    Annie Meyer, Respondent, v. Adolf Gans, Appellant. (Action No. 3.)
    Second Department,
    January 8, 1909.
    Evidence — action to recover for services rendered — proof of criminal assault by master — when error not cured by charge.
    In an action on contract to recover for services rendered to the defendant as Ms housekeeper, it is error to admit evidence that the defendant prior to discharging the plaintiff committed a criminal assault upon her.
    Such error is not cured by a charge stating that the evidence indicated the doubtful character of the plaintiff’s testimony.
    Appeal by the defendant, Adolf Gans, 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 2d day of April, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Max D. Steuer, for the appellant.
    
      Ira Leo Bamberger [Sidney Lowenthal with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff was a sister of the defendant’sdeceased wife. Immediately upon the death of the latter the defendant hired the plaintiff to act as his housekeeper at an agreed price of five dollars per week, and it is not disputed that for a term of five years the. plaintiff performed the services and received each week the agreed sum, without making any demand for further compensation. The plaintiff brings this action, claiming that soon after entering the defendant’s household, at the request of his children, she was engaged to act as governess, companion, etc., to these children, and that the defendant agreed to make good ” for such services. The action was, therefore, one on contract. It does not seem necessary to go into, the discussion of the evidence in support of the contentions of either party, for the reason that the record shows reversible error in the admission of evidence. The plaintiff, over the objection and exception of the defendant, was permitted to testify that at á period of some five months prior to her dismissal from the defendant’s service the latter came to her room one night, and finding her alone, committed an assault upon her., The defendant objected to this line of testimony as incompetent, irrelevant and .immaterial, and sought subsequently to have it struck from the record, but it was permitted to go in, and to remain, and while it is true that the learned trial court, in its charge, dwelt upon the fact as indicating the doubtful character of the plaintiff’s testimony, we are of the opinion that the error was not cured, and that the verdict of the jury ought to be set aside. This line of testimony had absolutely no bearing upon the question of whether the plaintiff and defendant entered into the contract alleged in the complaint some fiye years before the happening of this alleged assault, and the natural effect of such testimony would be ¡irejudicial to the defendant. It, therefore, constitutes reversible error. The learned trial court in a memorandum sets forth its reasons for denying the motion of defendant for a new trial, and admits that “ When the jury rendered a verdict for the plaintiff, I said that it was not in accordance.with my view of the case, and liad I been sitting as a juryman, my verdict would have been for the defendant,” but denied the motion. In further commenting the court says: “ It appears in evidence that on a former trial of another controversy growing out of her troubles, another jury also believed her as against defendant,” but just what that has to do with this case it is difficult to understand. The facts in that case may have been entirely obvious; the material facts, so far as we know, may not have been disputed, or may have been established by testimony entirely apart from that of the plaintiff, who stands alone in this case upon every material issue. But, in any event, it was error to complicate a simple question of whether a contract was entered into in 1902 between these parties with evidence going to the establishment of a criminal assault on the part of the defendant, aiid for this reason the judgment and order appealed froni should be reversed.

Jenks, Gaynor and Miller, JJ., concurred.

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