Schorn v. Berry — 43 N.Y. St. Rep. 508

Majority

p. 508

Julius A. Schorn, Resp’t, v. Charles A. Berry, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 13, 1892.)

Headnote

1. Pleading—‘Relevancy of allegations.

The true test of relevancy is to inquire whether the averments tend to constitute a cause of action or defense. If they do, they are not irrelevant.

2. Same—Criminal conversation.

In an action for criminal conversation, allegations that the plaintiff com mitted adultery with other persons after his marriage, and consented to» his wife’s adultery, tend to constitute at least a partial defense, and are not irrelevant.

Appeal from an order, entered in Chenango county, July, 1891, striking put certain portions of the defendant’s answer as irrelevant,, redundant and scandalous.

W. 0. Moulton, for resp’t; Qeorge W. Ray, for app’lt.

This action was to recover damages for an alleged alienation of the affections of the plaintiff’s wife. Among other-allegations contained in the answer was the following: “ That on divers and different occasions during the years 1886, 1887, 1888,. 1889 and 1890, the plaintiff had carnal and criminal connection, and intercourse with his servant girls and with other females, and bragged and boasted of the same to the said Clara Schorn, his: said wife, and importuned his said wife to have intercourse with other men.” This portion of the answer was stricken out as irrelevant, redundant and scandalous, and from that portion of the-order the defendant appealed.

If this matter was proper to be pleaded for any purpose, or if it-would affect the question of damages or go in mitigation of the amount of damages, it was not irrelevant. The true test of relevancy is to inquire whether the averments tend to constitute-a cause of action or defense. If they do, they áre not irrelevant. 1 Rumsey’s Pr., 299, el seq.

In an action for criminal conversation if the husband consents to his wife’s adultery it is a bar to the action, whether the consent be general by giving a general license to his wife to conduct herself as she pleased with men generally, or by assenting to thepartieular act of adultery charged. Winter v. Henn, (4 C. & P.

p. 509

498); Bunnell v. Greathead, ( 49 Barb., 106 ); Norris v. Norris, (30 L. J. M., 111); Cibber v. Sloper, (cited 4 T. R., 655); Sanborn, v. Neilson, ( 4 N. H., 501 ); Cook v. Wood ( 30 Ga., 891 ).

In an action of this character the defendant may show the plaintiffs carnal connection with other women at any time after his-marriage and before trial in mitigation of damages. Smith v. Masten ( 15 Wend., 270 ); Shattuck v. Hammond ( 46 Vt., 466 ); Rea v. Tucker, ( 51 Ill., 110 ); Sanborn v. Neilson (supra).

The matter contained in the portion of the answer stricken out was alleged both as a defense and in mitigation of damages. It in effect alleged that the plaintiff committed adultery with other ■ persons after his marriage and before trial, and that he consented, to his wife’s adultery. If the facts alleged could be established they would constitute a full or at least a partial defense to the action. We think the defendant had a right to plead the matters-stricken out, and that the court erred in granting the order appealed from. °

Order reversed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concur.