136 N.Y.S. 306 | N.Y. App. Div. | 1912
The defendant appeals from a judgment entered against her in the Supreme Court in Kings county on the verdict of a jury in favor of the plaintiff. The action was brought by the plaintiff to recover damages against'the defendant for the alienation of the affections of the plaintiff’s husband,.and loss of consorr tium, through the alleged malicious acts of the defendant. The jury found a verdict in favor of the plaintiff in the sum of $75,000, which was reduced by the trial court to $50,000 under a stipulation of the plaintiff. A judgment was entered upon the reduced verdict, and from it this appeal has been taken.
The plaintiff’s husband was a physician, who resided in the State of New Jersey, where she lived with him for some time. He had a position as a health inspector in the town in which they lived. According to the plaintiff’s testimony, he came to her one day, when she was pregnant with child, she having already several small living children, and he told her that smallpox had broken out in the neighborhood and there would' be great danger to her and her children, as he had to go among the people affected with that disease. He advised her to leave her residence and go to live with her mother until the plague had disappeared. She did so. While she was absent she sent him several letters which he answered, and then to several of her later letters came no answer. She read in the newspapers that he had been arrested together with one Laura Biggar, an actress, who is the defendant herein, on some criminal charge, . and was confined in jail at Freehold, N. J. She went to the jail and saw the defendant and her husband there. Recriminations took place between the wife and husband in the presence of the defendant. The defendant and the plaintiff’s husband were discharged from custody, but the husband did not return to the plaintiff. According to her story, she went to some theater in New York city where the defendant was performing, was admitted to her dressing room, and the defendant informed her that the husband would not return to her, the plain
It should be the rule, and we think it is, that. where one comes into a divorce action by voluntary appearance as a corespondent, a decision and judgment in that action are admissible in evidence thereafter against him as to any mate
It is unnecessary to consider here whether the judgment in the divorce action was conclusive ór prima facie evidence. For here the defendant did not attempt to give any evidence to rebut the chargesof adultery. So, if the judgment roll was simply prima facie evidence, there being no attempt to rebut the evidence, it would have become, so far as the jury were concerned, . conclusive evidence on the trial as to the acts in question. The judgment in this action is a large one, even as it stands,' and, under the facts shown in the record, apparently excessive. In cases of this class there is a large measure of discretion in the jury as to the amount of damages, and a verdict is not to ' be interfered with lightly on the claim that it is excessive. At the same time it is the duty of the trial court and of this court to consider such question wherever it arises properly. Every case of this character is somewhat a rule unto itself.
We thmb that the judgment and order should be reversed and a new trial granted, costs to abide the event, on the ground that the verdict was excessive, unless the plaintiff stipulate within twenty days to reduce the damages to the sum of $30, 000, with interest, exclusive of the costs taxed .on the entry of the judgment; in which event the judgment as so reduced and the order are affirmed, without costs of this appeal.
Present—Jenks, P. J., Hirschberg, Thomas,Carr and Woodward, JJ.
Judgment and order reversed and new trial granted, costs to abide the event, on the ground, that the verdict was excessive,