Sachs v. Bertrand — 12 Abb. Pr. 433

Majority

p. 433

SACHS a. BERTRAND.

New York Superior Court;

Special Term, September, 1861.

Headnote

Affidavit to obtain Arrest.

Requisites of an affidavit to obtain the arrest of the defendant in an action for criminal conversation with the plaintiffs wife.

Motion to discharge defendant from arrest.

The defendant in this action was arrested on an affidavit made by the plaintiff, stating that the action was brought for criminal conversation with the wife of plaintiff. It alleged that the defendant “ seduced and took away deponent’s wife,” and that they went to 173 Forsyth-street, where, as deponent alleged upon information and belief, they passed as man and wife: that they removed to another place in order to elude the plaintiff’s search, and the defendant took an assumed name, and that “ they continued to cohabit together as man and wife' until a very recent period.”

The defendant now moved to vacate the arrest, on the ground of the insufficiency of the affidavit.

Rankin & Reavey for the motion.

—I. The averment that the defendant and plaintiff’s wife' passed as man and wife is

p. 434

insufficient, for it does not indicate the sources of information. (Whitlock a. Roth, 5 How. Pr., 143 ; Frost a. Willard, 9 Barb., 440 .)

II. The plaintiff has not clearly made out the charge of criminal conversation ; therefore defendant is entitled to a discharge. (Hernandez a. Carnobeli, 4 Duer, 642 ; S. C., 10 How. Pr., 433 ; Barron a. Sanford, 6 Abbotts’ Pr., 320.)

III. The word “ seduction,” without any innuendo, is indefinite.

TV". There being no averment that defendant debauched the wife, or had her fellowship and assistance, or alienated her affections from the plaintiff, the plaintiff has not made out his case.

Y. The fact of marriage should be shown, and the word “wife” is insufficient for this.

Messrs. Sparks & Levy opposed.

—The plaintiff deposes that in 1859, the defendant, after being two months in his employ, seduced and took away deponent’s wife, and then called himself William Muller. He subsequently discovered that he went to 143 Forsyth-street, where, as he is informed and believes, they passed as man and wife; that they continued afterwards to cohabit together as man and wife, until a very recent period, at 106 East Twenty-second-street.

Frederick Bauman deposes that the plaintiff’s affidavit is true of his own knowledge as to the person calling himself Charles H. Bertrand, seducing the wife of said Sachs; that up to the time of said Bertrand’s taking away the wife of said Sachs, he was with deponent.

The affidavits on the part of the plaintiff do not aver that he lost or was deprived of the comforts, society, or services of his wife; nor do they contain any allegation of facts relied upon as proving what the plaintiff calls seduction, or explaining in what sense he uses that word. (2 Robinson's Pr., 553, 556.)

The defendant makes affidavit that he never seduced said Mary Sachs away from said plaintiff; that he.never lived with said Mary Sachs, at 143 Forsyth-street, as man and wife; that he has not, and did not, at any time, live with said Mary Sachs

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as her husband; and defendant further avers he never cohabited with said Mary Sachs. If the gist of this action is regarded as being the criminal conversation of defendant’s wife, then it may be said that no one testifies to the wrong as a matter within his own knowledge, nor to facts within his knowledge, which, if ti;ue, would justify the conclusion that he was guilty of the act imputed. The defendant denies being guilty of such misconduct.

The motion was argued before me on such theory and assertion, that the affidavits established that defendant had induced plaintiff’s wife to have criminal conversation with him.

I do not think the plaintiff’s affidavits have established that he has. They do not state facts within the plaintiff’s knowledge, which being uncontradicted, would establish prima facie the defendant’s guilt.

At all events there is no such direct proof of a cause of action that the defendant’s affidavits should be disregarded. It is not the case of a cause of action sworn to pointedly, which per se gives a right to an. order of arrest,—and of 'an attempt to procure a discharge from arrest, on an affidavit denying the existence of a cause of action, which prima facia establishes guilt.

Whether the defendant deserves to be incarcerated or not, upon the actual facts of the case, the affidavits do not enable the court to form an opinion.

On the affidavits on which the motion is made and offered, the order, of arrest should be vacated, on the defendant stipulating not to bring any action by reason of his arrest under it.

Seven dollars costs allowed to the party who shall ultimately be adjudged entitled to recover costs of the action.