#### ELDREDGE v. ELDREDGE et al.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

Appeal—Errors Cured—Admitting Improper Evidence.

Error in admitting improper evidence is not cured by striking it out, unless it appears that such evidence did not affect the verdict.

Appeal from circuit court, Broome county.

Action by Margaret T. Eldredge against Anne E. Eldredge and Mary E. Withington, impleaded with Hallam Eldredge, deceased. From a judgment entered on a verdict for $4,000 in favor of plaintiff, and from an order denying a motion for a new trial made on a case and exceptions, defendants appeal.

Reversed.

Plaintiff, in her complaint, alleges that “the said defendants have schemed, concerted, and acted together to separate plaintiff from her said husband; to induce such husband not to live with plaintiff; to alienate his affections from plaintiff, and deprive her of his comfort, aid, and society, and to alienate from her the affections of her said husband; and to deprive her of the benefits and enjoyments of his society.” Also: “The said defendants persuaded and induced plaintiff’s said husband to abandon and separate from her, and to live with the said defendants at their home, and there, without the consent of this plaintiff, and against her wishes, harbored her said husband, and aided and abetted him in separating himself from this plaintiff. That on or about the 11th day of August, 1891, the said James Eldredge abandoned the plaintiff, and went to live with the said defendants, at whose home he has ever since been unlawfully entertained and harbored, and during all of which time the plaintiff was and is still deprived of his society, assistance, and service. * * * The said defendants unlawfully and wrongfully persuaded and induced plaintiff’s husband to abandon and separate himself from her as aforesaid, and have alienated and deprived the plaintiff of the affections of her said husband, and have ever since unlawfully entertained and harbored, and are now unlawfully and wrongfully entertaining and harboring, her said husband.” The answers of the defendants admit the marriage of the plaintiff to James 0. Eldredge on January 7, 1891, and contained denials of the complaint.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ..

Edward K. Clark, for appellants.

Edmund O’Connor, for respondent.

HARDIN, P. J.

Plaintiff, in 1887, became acquainted with James Eldredge, and received his attentions from time to time (which were interrupted for a period of about six months); and on the evening of January 7, 1891, she accompanied him to the residence of a clergyman in the city of Binghamton, and they were married, and on that evening they separated (to some extent, keeping their marriage a secret), she returning to her mother’s house, and he returning to his father’s house. Subsequently, she disclosed her marriage to her mother, and shortly after returning to his father’s house he disclosed the marriage to his father. Subsequently, and on the 28th day of January, the plaintiff and her husband went to live in rooms of the boarding house of Mrs. Goodenough, in the city, where they remained until the 16th of March, when the husband made.some-*942arrangement to go south, with a view of selling cigars, and upon his return he made an arrangement with a Mrs. Blish to board himself and wife, where they remained from the 2d of May until the 5th of June, when the plaintiff again returned to her mother’s house, and has remained there ever since, being visited occasionally by her husband. In August the husband of the plaintiff went to Sumter, S. C., where he had an aunt, and where he had expectations of making a settlement in business, and remained there for several weeks. While he was thus absent this action was commenced, on the 1st of September, 1891, against his father, mother, and sister.

Plaintiff’s right of recovery is based upon the alleged loss of the society, affections, and companionship of her husband. Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17. And, to maintain the action, it was incumbent upon her to show that the defendants had wrongfully persuaded and enticed him from her, and thus deprived her of his society by means of their “tortious act.” Heermance v. James, 47 Barb. 120; Jaynes v. Jaynes, 39 Hun, 40; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17. For some time prior to the plaintiff’s marriage the husband had been addicted to the use of intoxicating drinks. His health was very much impaired, and at times he was rendered entirely unfit for business. And the knowledge of such habits, and the condition of health, was communicated to the plaintiff and to her mother prior to the marriage. His habits continued very objectionable,—at intervals being accustomed to the use of intoxicating drinks to an excess,—which condition seemed to have continued, to a greater or less extent, down to the time of the commencement of this action. His habits were such that they seemed to have occasioned his father and mother and sister a great deal of trouble prior to the marriage, and more or less occasioned them annoyance and perplexities after the marriage was contracted, and doubtless the acts and conduct of the defendants were more or less influenced by the condition of his health and habits.

When Mrs. Shannon (mother of the plaintiff) was upon the stand, she said that prior to the marriage she used to meet these defendants occasionally, “and they were always very nice to me.” Thereupon, the counsel for the plaintiff asked her this question: “Q. Since the marriage, have you frequently met them?” The answer was, “Yes, sir.” This was objected to, and received, and an exception taken, and thereupon the plaintiff’s counsel put the following question: “Q. How, since the marriage, when you met them? A. They never notice me since the marriage.” This was objected to as irrelevant, and the court remarked, “I will receive it as one of the facts in the case.” An exception was taken. It is not apparent that this evidence was material to the issue presented by the plaintiff.

The plaintiff was allowed to give evidence of the power of attorney executed by James Eldridge to his mother on July 15, 1890, and also a deed executed by the mother to her husband, the father of James, on the 25th of July, 1890. Each of these papers *943were objected to as incompetent and inadmissible, and the objections were overruled, and an exception taken. It is difficult to see how the acts of James and of his mother and father, transpiring in 1890,—six months before his marriage with the plaintiff,—tend to support the allegations of the complaint. Thereafter, the plaintiff offered in evidence the original complaint in an action brought by James, the husband, against these .defendants and his uncle, who had created a trust in favor of the defendants. When this complaint was offered, it was objected to as not competent, and .as no proof of the facts stated in the papers. Thereupon, the plaintiff’s counsel observed, “I do not offer it as proof of the facts stated, but as proof that those claims were made to the respective parties.” Thereupon, the court remarked, “I will receive it,” and .an exception was taken. After that ruling, the summons and complaint, which were verified by James on the 18th of July, 1891, in the action of James 0. Eldredge against Hallam Eldredge, Anna E. Eldredge, Mary E. Withington, and James Eldredge, were received and read in evidence. Upon an inspection of the complaint, it is found to contain many allegations that were calculated to affect the minds of the jury upon the vital and critical question ;at issue between the parties in this action. The respondent’s coun■sel attempts to escape the criticism upon that ruling by an assertion that “the court particularly cautioned the jury upon that ques-. tian, at the defendants’ request.” Upon turning to the charge of the learned judge upon the subject we find him saying, viz.:

> “A suit was commenced by this young man to set aside the power of attorney, and the deed that his mother gave, and a complaint was made and signed by him in that action, which has been read to you. Now, gentlemen, there were a good many statements of facts in that action. For instance, it was stated therein that they had said to him that unless he left his wife he -could not have his property. Now, gentlemen, that statement is not evidence to you in this case. It is a pity that it was read to you, for the fear that it may influence you, and I charge you to give no credit whatever to the statement. It was answered by the sworn answer of the defendants that it was not true. If the plaintiff wanted the benefit of the young man, as to what his parents had ever said to him, she should have put it before you by his sworn evidence under oath, and on the trial of this case. What he said there, with no opportunity * * * to cross examine him,—with no opportunity for you to look him in the face, and see whether it was true or false,— has not the slightest effect, and nobody of good judgment would consider it for a moment. Hence, I ask you to disregard it entirely. All that pleading was for was to show the fact that he had commenced a suit in which he made certain charges—in which he claimed certain things—against his mother, and the reasons that he claimed them, and the facts upon which he claimed them. Perhaps they should not have been put before you, and I ask you to disregard entirely anything you can remember of that complaint, ■ except the fact that there was such an action brought against the parents."

In Erben v. Lorillard, 19 N. Y. 302, Grover, J., said:

> “When illegal evidence, properly excepted to, has been received during a trial, it must be shown that the verdict was not affected by it, or the judgment will be reversed. If the evidence may have affected the verdict, the ■error cannot be disregarded. * * * It does not follow that impressions thus obtained will have no effect, although the judge directs them to disregard the evidence."

*944This rule is reasserted in Wersebe v. Railroad Co., 1 Misc. Rep. 474, 21 N. Y. Supp. 637, and several cases are there cited to the sáme effect.

After the plaintiff had testified that she received a letter September 5, 1891, which her husband wrote, and sent her from Sumter, which contained a $25 check, she was asked by her counsel, viz.: “For what purpose did you bring and show that letter to me?” “Objected to as immaterial, incompetent, and calling for a conclusion.” The objection was overruled, and an exception was taken, and the witness answered, “I thought it would be for my interest.” Thereafter, the plaintiff’s counsel offered in evidence the letter of September 5, 1891, which was objected to as incompetent and immaterial, and as irrelevant and hearsay, and not binding upon these defendants. The objections were overruled, and an exception taken, and the letter written by the plaintiff’s husband was read. Thereafter, the plaintiff’s counsel offered a replying letter, which had been prepared under his supervision, and sent by the plaintiff to her husband, which bore date Séptember 7, 1891, which letter contains many self-serving declarations and statements made by the plaintiff. Thereupon, the plaintiff’s counsel exhibited to the witness a letter of September 10th, and asked her if that 'was a letter which she received in reply to the one of the 7th. She asserted that it was, and thereupon the letter of September 10th was received in evidence. During the course of the trial the defendants gave considerable evidence tending very strongly to negative the allegations of the complaint. The jury have disregarded that evidence, and followed the testimony given by the plaintiff and her witnesses, and, in effect, found that the defendants wrongfully persuaded, influenced, and induced an alienation of the affections of the husband of plaintiff from her, and thus wrongfully deprived her of his society. With the conflict thus shown in the evidence, we are not prepared to say that the rulings which we have pointed out, and the evidence so received against the defendants’ objections and exceptions, worked no harm to the defendants. We are of the opinion that the appellants are entitled to a new trial by reason of the errors in the rulings to which reference has been made. Winsmore v. Greenbank, Willes, 577; Boues v. Steffens (Sup.) 16 N. Y. Supp. 819. Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event. All concur.