Majority
p. 708Peter Smith, Resp’t, v. John O’Brien, App’lt. (Supreme Court, General Term. Second Department, Filed June 28, 1889.)
Headnote
1. Criminal conversation—Action for—When judgment not disturbed.In an action to recover damages for criminal conversation for seducing-plaintiff’s wife: Held, that where, beyond other evidence, there was the most direct proof of guilt given by plaintiff, the judgment in his favor-will not be disturbed.
2. Evidence—Code Crv. Pro., § 831.
Section 831, Code of Civil Procedure, does not apply to actions where a. husband seeks to recover damages for alienation of a wife’s affection.
Appeal by the appellant from the judgment and order-denying a new trial thereon, on a verdict of the jury at the Westchester circuit court, December, 1888, in favor of plaintiff, for $1,000 damages, in an action for criminal conversation. This appeal is taken on the ground that the evidence of the alleged criminal act of defendant with plaintiff’s wife is insufficient, and the verdict is against the weight of evidence in the case.
Francis Larkin, for resp’t; John Qibney, for app’lt.
The proof is sufficient to support the verdict. The plaintiff’s business called him away from home every other night, and the defendant was a regular visitor of his wife on the occasion of the absence of the husband.
O’Brien is proven to have ridden out with his wife
p. 709
and was seen with her in the stone yard near her residence in company with the defendant, quite late at night. There is, beyond this, the most direct proof of guilt given by the plaintiff.
Section 831 of the Code does not apply to actions where the husband seeks to recover damages for alienation of a wife’s affection.
The wife is not a party, and the evidence is not strictly against her.
The judgment should be affirmed, with costs.
All concur.