34 N.Y.S. 777 | N.Y. Sup. Ct. | 1895
This action was commenced on March 7, 1894, to recover damages against defendant for alienating the affections of the husband of the plaintiff, enticing him away, and depriving plaintiff of his society. The plaintiff recovered a judgment of $2,000, and defendant appeals.
That such an action may be maintained by a married woman is now well settled. Eldredge v. Eldredge, 79 Hun, 511, 29 N. Y. Supp. 941; Manwarren v. Mason, 79 Hun, 592, 29 N. Y. Supp, 915; Bennett
While defendant was at St. Paul and other places in the West, and afterwards, at North Adams, Mass., she wrote a number of letters-to Mr. Van Olinda; and it is claimed that the admissions and statements contained in those letters are sufficient to uphold the verdict rendered by the jury. The letters show a considerable intimacy between the parties, a strong desire on her part that Mr. Van Olinda should join her in the West, and afterwards at North Adams;, and one of the letters seems to suggest a proceeding for a divorce to be undertaken by him. In regard to. those letters, it should be remembered that defendant and Mr. Van Olinda were connected by marriage; that she was among strangers, in a Western state, and might naturally desire the presence of Mr. Van Olinda, who was to be accompanied by her adopted daughter. But assuming that the letters evince an intent on her part to entice Van Olinda from hi® wife, or to alienate his affections, the evidence fails to show that defendant succeeded in her attempt. Van Olinda did not go West.
Nor does the testimony sustain the contention of the plaintiff that the defendant alienated the affections of Van Olinda from the plaintiff. As we have seen, while Van Olinda and defendant were living in her house at Saratoga Springs, there is no evidence indicating any improper attempt on her part to estrange him from his wife, or to show that she had succeeded in such attempt, if made. If her letters from the West and from North Adams indicated an attempt to alienate the husband from his wife, the evidence does not show that the attempt succeeded. We have no letters from Mr. Van Olinda to the defendant in evidence. We are not shown the state of his feelings towards the defendant or his wife. It does not appear that there was any change in his feelings in regard to the plaintiff. The evidence in the case hereinafter referred to indicates that prior to this time the relations between the plaintiff and her husband were not what they should have been. Whether those relations were at all changed in consequence of the letters of defendant, or her influence, the evidence does not disclose. As we have seen, plaintiff was bound, not only to show the wrongful attempt of defendant to alienate Van Olinda, and entice him from the plaintiff, but that such attempt had succeeded. The letters of defendant may show the unlawful attempt on her part to influence Van Olinda, but plaintiff fails to show by satisfactory evidence that defendant was successful in such attempt.
We are also of the opinion that the court should have granted defendant’s motion for a new trial, on the ground that the damages were excessive. As above mentioned, when the plaintiff called at defendant’s house on February 14, 1894, and found her husband there with defendant, it is not claimed that she made any complaint whatever. Nor is there any evidence that at any time before the commencement of the action she complained of her husband’s absence, or requested him to return home or to leave the house of Mrs.-Hall, or that she remonstrated with defendant. The witness Goodrich testified that in ’a conversation with the plaintiff, in 1893, the latter said she “expected to get some money from her brother, and that she expected to buy a home and settle down, and to make Mr. Van shift for himself, as she would not support him any longer. Q. Did she say anything at the time about whether he provided for her? A. She always found fault about that. That has been the principal thing all through.” The witness Stephenson testified that she had a conversation with the plaintiff when Mr. Van Olinda was at Saratoga. “She said she would as soon he would be away as at home;” “that he didn’t provide for the family.” After these witnesses had been sworn, plaintiff was called to testify, and did not contradict their evidence, and hence we must assume that they
The judgment should be reversed, and a new trial granted; costs to abide the event. All concur.