106 N.Y.S. 306 | N.Y. App. Div. | 1907
The action is to recover damages for the alienation of the affections ■ of plaintiff’s wife. The complaint by positive allegation alleges that without the knowledge or procurement of plaintiff, the defendant, contriving and intending to injure the plaintiff' and alienate the affections of his' wife,.at various times arid places debauched her and destroyed her affection for plaintiff,.to his great' distress and damage.
The affidavit which' was presented with the complaint upon the application for the order óf arrest,, alleges that all of the allegations of the complaint are true to deponent’s knowledge.
The motion to.- set aside the order of arrest was denied and the defendant appeals.
The principal point urged by the defendant is that the complaint itself states that the acts charged against defendant were committed
Of course,, it is possible that the plaintiff may have discovered the. defendant and his wife in the perpetration of the wrong, and thus had personal knowledge. - If such was . the fact, we think he should have; sb stated. The charge of continued' and repeated defilement tends to negative the idea of. discovery in stieh a manner.
The affidavit in our opinion was insufficient and the motion to Vacate should have been granted. ■
The order appealed from must be- reversed, with ten dollars costs and disbursements, and the motion to vacate the order of arrest, granted, with ten dollars costs.
Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, >