Romaine v. Decker

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 New-burgh 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 at 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 plain.tiff testifies to an occurrence which tended to show that her husband had carnal intercourse with the defendant. Quarrels ensued be

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 “this action cannot 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 for merely 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 , 23 N. E. 17 ; Jaynes v. Jaynes, 39 Hun, 40 ; Breiman v. Paasch, 7 Abb. N. C. 249 ; Baker v. Baker, 16 Abb. N. C. 293 ; Warner v. Miller, 17 Abb. N. C. 221 ; Churchill v. Lewis, Id. 226 ; Simmons v. Simmons, 21 Abb. N. C. 469 , 4 N. Y. Supp. 221 . 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 relations. In this ease, 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 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 or allurements. Had it been shown that the defendant had, either in writing or orally, made protestations of her love and affection for

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