Blake v. Everman — 31 N.Y. St. Rep. 355

Majority

p. 355

Cornelia Blake, Resp’t, v. Fannie Everman, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 26, 1890.)

Headnote

Venue—Alienation oe husband’s aeeection.

In an action by a wife for alienating the affections of her husband it op-peared that plaintiff resided in Warren county and defendant in Livingston county; that defendant, as alleged, believing plaintiff’s husband tobe' unmarried, went through a marriage ceremony with him in Livingston county. On motion to change the place of trial to Livingston, defendant stipulated to admit plaintiff’s marriage, and that plaintiff had received her" husband’s affection and support. Held, that as, if plaintiff succeeded in-her action, defendant would by inference have been guilty of a crime, Penal Code, § 301, this court, regarding “the ends of justice," Code Civ.Pro., § 987, deem it proper that the civil action should be tried in Living-stan county where the criminal prosecution, if any, must be carried on.

Irreal from order dénying motion to change place of trial.

indrew Hamilton, for app’lt; I). 8. Potter, for resp’t.

This is an appeal from an order denying á motion to change the place of trial. The action is brought by the wife of one Jonas J. Blake for the alleged alienation of his affections by the defendant. The defendant had gone through the marriage ceremony with plaintiff’s husband, and claims to-have done so believing him to be unmarried.

The defendant resides in Livingston county, and that ceremony" was performed there. The plaintiff resides in Warren county.

The defendant, to obtain the change of place of trial, stipulates" to admit- plaintiff’s marriage and her receiving the affection of her" husband and support from him, etc.

The alleged cause of action arose in Livingston county; because’ it is there that defendant is averred to have enticed the plaintiff’s’ husband and to have married him.

Evidently the questions to be litigated are whether defendant knew Blake to be a married man and whether with such knowledge she enticed said Blake and alienated his affections from plaintiff.

The defendant admits that she had heard rumors that Blakes was married, and that she wrote to him to inquire how this was.. She avers that he told her he was divorced, on which she said, that she could not marry him; that afterwards he told her his. wife was dead, and thereupon she married him.

It appears that a former action for the same cause was commenced in 1886, in which the complaint was dismissed. The-place of trial was Livingston county.

If the defendant is liable in this action, then it would follow that she had been guilty of a crime under § 301, Penal Code,. For such a crime she would be tried, if anywhere, in Livingston; county. It would seem fair, unless there were strong reasons to-the contrary, that she should be allowed to defend this action in the same county.

In motions of this kind it is well known that the parties seldom need all the witnesses whose names are given in the affidavits. We-must act upon this knowledge and upon our- judgment in regard

p. 356

both to convenience of the witnesses who will be called and also in regard to the other matters mentioned in Eule 48, and “ the ends of justice.” Sub. 3, § 987, Code Civil Procedure.

We are reluctant to interfere with the discretion exercised by •the court below in cases of this kind. But in the present instance ■on a careful examination of the papers and a consideration of the •number of witnesses who will be called, we think that defendant’s motion should be granted.

Order reversed, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs, all to abide the .event.

Landon and Mayham, JJ., concur.