#### MANWARREN v. MASON.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

Evidence—Declarations of Third Persons.

In an action for enticing away plaintiff’s husband, declarations of the husband made in the absence of defendant are not admissible against defendant.

*916Appeal from circuit court, Onondaga county.

Action by Iva Manwarren against Mary J. Mason to recover damages for the alleged alienation of the affections of plaintiff’s husband, George W. Manwarren. The defense was general denial. Judgment was entered on a verdict for $2,358.33 in favor of plaintiff, and defendant appeals.

Reversed.

After the rendition of the verdict, defendant moved for a new trial on the minutes. The motion was denied, and the defendant appeals from the order denying the motion for a new trial on the minutes, and also from the judgment entered upon the verdict. In the amended complaint of the plaintiff it is alleged that the defendant, “wrongfully and unjustly, intending to injure the said plaintiff, and to deprive her of the comfort, fellowship, and assistance of George W. Manwarren, her husband, knowing him to be the husband of the said plaintiff, and to alienate and destroy his affections for her, the said plaintiff heretofore, and during the month of June, 1892, and at divers times prior and since said time, Wrongfully, wickedly, and unjustly, enticed him away from the plaintiff, and his then home and the home of the plaintiff, to the residence of the defendant, and has ever since then harbored him, against the consent of the plaintiff,” etc. The answer contained admission of the plaintiff’s intermarriage with her husband, July 12, 1874, and a denial of the other allegations of the complaint. The parties resided in the village of Baldwinsville. The defendant was of the age of 46 years, and the widow of Dr. Mason; her husband having died on the 29th of February, 1891, leaving two sons,—one 8 and the other 19 years of age. The husband of the plaintiff became a successor to the business carried on by the deceased husband of the defendant.

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

Kennedy & Ross, for appellant.

James R. Shea, for respondent.

HARDIN, P. J.

According to the decision made by this court in Bennett v. Bennett, affirmed 116 N. Y. 584, 23 N. E. 17, the plaintiff is entitled to maintain an action against one who has enticed her husband from her, alienated his affections, and deprived her of his society. In Jaynes v. Jaynes, 39 Hun, 40, it was held “that a wife has a right to the conjugal society of her husband, for the willful violation of which by a third person she may maintain an action in her own name.” After a careful perusal of the evidence, we are of the opinion that it was the duty of the trial judge to submit the question of fact to the jury, and that he was warranted in refusing to set aside the verdict, as against evidence, at the close of the trial. Although the defendant, as a witness, contradicted many of the facts and circumstances which were sworn to by the plaintiff and her witnesses, we think, notwithstanding the conflict thus presented, that the trial judge was warranted in refusing to hold that the verdict was against the weight of the evidence.

2. In Winsmore v. Greenbank, Willes, 577 (decided in 1745, which was an action brought by a husband for enticing away his wife, it was held that “the declarations of the wife are not admissible” in such an action. In Boues v. Steffens (Sup.) 16 N. Y. Supp. 819, in a similar action, it was held that it was error to allow the plaintiff “to prove that he made complaints to other parties in the absence of defendant;” and it was also held that the error must have *917been injurious to the defendant, and the verdict there rendered was set aside. In Erben v. Lorillard, 19 N. Y. 299, it was held that a declaration of the plaintiff, while carrying on a conversation in respect to the purchase of land, as to his compensation, was not admissible as part of the res gestae. In Stickney v. Billings, 30 Hun, 304, it was held that declarations made by a plaintiff to his attorney in the absence of the defendant were not admissible. “They were no part of the res gestae of any transaction had then and there with the defendants.” Upon the trial now under review the trial judge buffered the declarations of the husband of the plaintiff to be received, and conversations held by the plaintiff with him both before and after the commencement of the action. Such rulings received in evidence declarations which may have had a potential influence upon the jury in determining the critical issue arising in the progress of the trial. We are not at liberty, upon an inspection of the whole case, to say that the illegal testimony could not possibly have influenced the jury, or affected the result. Root v. Borst, 142 N. Y. 62, 36 N. E. 814; Stickney v. Billings, 30 Hun, 304, and cases cited in the opinion.

3. It may well be doubted whether the letter which was written by the plaintiff’s husband to her, and offered in evidence by the plaintiff, was admissible. Hobby v. Hobby, 64 Barb. 277. It was a declaration made by the plaintiff’s husband, and in the absence of the defendant, and forming no part of any transaction had between the plaintiff and the defendant. We think there should be a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur.