Hoefler v. Hoefler — 2 A.D. 8

Majority

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Mary E. Hoefler, Respondent, v. Mary R. Hoefler, Appellant.

Headnote

Action for inducing a husband to leave the State to avoid paying alimony — evidence of his ill-treatment of his wife is incompetent.

Upon the trial of an action brought to recover the damages caused to the plaintiff by the alleged action of the defendant in advising and aiding to leave the State of New York her son, plaintiff’s husband, who had been ordered in an action brought by the plaintiff against him for a separation to pay alimony to her, the plaintiff was allowed to show the unhappy relations existing between herself and her husband before the separation and to prove Various acts of ill-treatment on his part with which the defendant was not connected and of which she had no knowledge.

Held, that, assuming that the action could be maintained, the evidence was improperly admitted; .

That the prior conduct of the husband did not bear upon .the question whether the defendant advised him to leave the State for the purpose of depriving the plaintiff of her alimony;

That the_ tendency of the evidence was to excite the sympathy of the jury in favor of the plaintiff and to prejudice the rights of the defendant in a case where the issue of fact was upon the testimony very doubtful.

Appeal by the defendant, Mary R. Hoefler, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of January, 1895, upon the verdict of a jury rendered after a trial at the Monroe Circuit.

June 20, 1888, the plaintiff and John 0. Hoefler intermarried, and thereafter they lived together at’ Geneva, H. Y., as husband and wife until February 22, 1892. During this time two children Avere born of the marriage, Raymond, February 22, 1890,. and Josephine E., in January, 1892. ' On the ’22d of February, 1892, the plaintiff left her husband and returned to her parents at Rochester, H. Y. On the tAventy-seventh of the same month she began an action ■ for a separation on the ground of cruel and inhuman treatment. March 19,189'2, the defendant- answered in the action, and April 25, 1892, an order was duly granted and entered requiring the defendant to pay twenty-five dollars counsel fee and disbursements in the action, and four dollars per Aveek for plaintiff’s support during its pendency. The sum aAvarded for counsel fee Avas paid, and also the alimony to September 1, 1892, since Avhich date no alimony has been paid.,

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though the action is still pending. December 25, 1892, the husband left this State and removed to the State of ¡Nebraska, where he has since remained. December 7, 1892, this action was begun against Mary ¡R. Hoefler, the husband’s mother, the ground of which is considered in the opinion, and upon the trial the plaintiff had a verdict for the amount of alimony,. $264, which became due between September 1, 1892, and December 7, 1892.

Thomas Raines, for the appellant.

William E. Edmonds, for the respondent.

The precise ground on which the pleader sought to found this action is not clearly set forth in the complaint, and it is easier to say what causes of action are not alleged than to ascertain the particular cause of action sought to be alleged. It is clear that the action was • not brought on the theory that„ prior to December 25, 1892, the defendant alienated the affections of the. plaintiff’s husband, the defendant’s son, and so induced the separation and deprived the plaintiff and her children of the support at his hands to which they were entitled. The case was not tried upon that theory. But it was tried and submitted to the jury on the theory that in case the defendant advised and aided the plaintiff’s husband to leave the State, and go beyond, the jurisdiction of the court, with intent to deprive the plaintiff of the support provided by the order granting alimony, that the defendant would be liable for the damages which were,.as the jury were instructed, in case they found the defendant liable, the amount due under the order at the date when the action was begun, for which amount a verdict was recovered. The evidence given by and in behalf of the plaintiff in support of this issue was slight, but it was, in the opinion- of the learned trial justice, sufficient.to make out a prima facie case. The defendant in her testimony denied that she advised or aided her son to leave the State, and testified that she was not aware of his intention to go. Some evidence was introduced which corroborated her testimony.

Upon the trial the plaintiff was permitted, over the objection and exception of the defendant, to show the unhappy relations which

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existed between the plaintiff and her husband prior to their separation. It was shown that he ■ was frequently intoxicated, and that when in that condition he abused and ill-treated the plaintiff. The plaintiff and her husband and the defendant lived in the same village, and. the two families were in frequent communication. The . plaintiff was allowed to give evidence of various acts of ill-treatment' on the part of her husband, with which the mother had no connection, and of which she had no knowledge.

We think the court erred in receiving evidence of-the conduct of the husband prior to February 22, 1892, for it was not relevant to the issue whether this defendant ádvised him to leave the State in December, 1892, for the purpose of depriving the plaintiff of alimony. The tendency of this evidence was .to excite the sympathy of the jury in favor of the plaintiff, and thus prejudice the rights of the defendant, and especially in a case where the issue of fact was so doubtful. If the defendant can be held liable in this action s it is only on the ground that she induced and aided her son to leave ' the State with the intent to evade the order, which must be determined by what she did after the order for alimony was granted. Assuming that it was competent to show the existence prior to February 22, 1892, of ill-will .on the part of defendant towards the plaintiff, for the purpose of convincing the jury that it was probable ■ , that the defendant did' the acts alleged, it was not competent to prove the quarrels between the husband and wife which did not occur in the defendant’s presence, and in which she took no part, and of many of which she was not shown to have any knowledge.

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

All concurred.

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