Romaine v. Decker

Full title: FRANCES J. ROMAINE, Appellant, v . ANNIE DECKER, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 1, 1896

11 App. Div. 20 (N.Y. App. Div. 1896)

43 N.Y.S. 79

Opinion

December Term, 1896.

John W. Lyon, for the appellant.

Nehemiah Fowler and M.H. Hirschberg, for the respondent.

CULLEN, J.:

This action is brought to recover damages from defendant for maintaining adulterous relations with the plaintiff's husband, and, by such means and other artifices and devices, depriving plaintiff of the husband's society, comfort and support. The evidence of the plaintiff was to the effect that she and her husband, who was a locomotive engineer, had lived together at Port Jervis in Orange county, during which time the husband was kind and affectionate, and had properly supported and maintained her. Subsequently the husband was assigned to duty on the route from Newburgh to Jersey City. This necessitated his residing, during a greater part of the time, in Newburgh, where he boarded with the defendant. The plaintiff for a period continued to live in Port Jervis. In January, 1895, the plaintiff with her child joined her husband at Newburgh, and boarded with the defendant. During the time of her stay there the plaintiff's husband did not room with her. The plaintiff testifies to an occurrence which tended to show that her husband had carnal intercourse with the defendant. Quarrels ensued between the plaintiff and her husband, and also between the plaintiff and the defendant, over the relations alleged to exist between the husband and the defendant. This finally resulted in the defendant turning the plaintiff out of the house. The husband still continued to reside with the defendant. Since that time the husband has had no intercourse with the wife, and has failed to give her sufficient support. At the close of the plaintiff's case the court dismissed the complaint.

The theory upon which the counsel for the respondent seek to sustain the ruling of the trial court, and upon which the learned trial judge doubtless proceeded is that "the action could not be maintained by proof of adulterous intercourse, without evidence that such intercourse was the result of the defendant's seduction of the husband." It is not disputed that the plaintiff gave evidence which, if credited, was sufficient to support a finding by the jury that her husband and the defendant had had carnal intercourse. The story told by the plaintiff in this respect may have been unlikely and improbable, but it was not impossible, nor was its improbability so gross as to authorize the court to decide, as matter of law, that it was incredible. Therefore, the question then is, whether the proposition contended for by the respondent's counsel is correct. We think not. We will concede, at least for the purposes of the discussion, that a wife cannot maintain an action against another woman because merely of her having had carnal intercourse with her husband; in other words, an action for criminal conversation pure and simple. But it is settled by authority that in this State a married woman may recover damages from another woman for enticing away her husband and depriving her of his comfort, aid, protection and support. ( Bennett v. Bennett, 116 N.Y. 584; Jaynes v. Jaynes, 39 Hun, 40; Breiman v. Paasch, 7 Abb. N.C. 249; Baker v. Baker, 16 id. 293; Warner v. Miller, 17 id. 221; Churchill v. Lewis, Id. 226; Simmons v. Simmons, 21 id. 469.)

The rule laid down by this line of authorities the defendant's counsel accept, but they contend that the cases are authority only for the rule that an action lies where the wife has been deprived of the society and support of her husband. This claim we will also concede, and assume, without deciding, that no action will lie by the wife for the infidelities of her husband against his partner in those infidelities, as long as in other respects he discharges faithfully his marital obligations. In this case, however, the injury to the plaintiff has not been the mere infidelity of the husband, but the fact that the husband has abandoned her and failed to give her support. Therefore, the actionable wrong is here made out, and the only question is whether the defendant is so connected with that wrong as to be liable in an action for damages. Just at this point we reach what we regard as the fatal error in the respondent's counsel's contention. Conceding as they do the liability of the defendant, had she enticed away the plaintiff's husband, they wholly fail to appreciate that the carnal intercourse may be, nay, generally is, the greatest of enticements and allurements. Had it been shown that the defendant had, either in writing or orally, made protestations of her love and affection for the plaintiff's husband and her desire for his affection, love and society in return, it would hardly be denied that such proof, followed by the husband's abandonment of the plaintiff, would have been sufficient to maintain the action. We have a notion that a woman's voluntary gift of her person to a man may be regarded certainly as constituting as great an evidence of illicit affection or love as anything she might say. In the case of a common strumpet, plying her vocation and dealing with a husband on strumpet a pecuniary basis, it may be that she cannot be properly charged with inducing or alluring the man away. So, too, in the present case, if carnal relations were established between the plaintiff's husband and the defendant it would be competent for the defendant to show that she was the party least at fault, and that it was she who had yielded through the blandishments and seductive arts of the man, not he through her solicitation. But we think that when it has been shown that the husband abandons his wife and remains away from her, and it is also proved that during the period of such abandonment he is maintaining improper relations with another woman, it will ordinarily be a question of fact for the jury to determine whether the meretricious favors accorded by the mistress are not an inducing cause to the desertion of the wife.

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred, except BROWN, P.J., not sitting.

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