#### Nellie O’Gorman, Respondent, *v.*Minnie Pfeiffer, Appellant.

First Department,

June 16, 1911.

Husband and wife — alienation of affection— action by wife — damages -^making will in favor of another — pleading — complaint.

The gist of an action for the alienation of the affections of a husband is the loss of consortium — the.deprivation of marital rights, caused by defendant’s act.

Those rights for the loss of which plaintiff .may recover damages are of two classes, personal, as the society, affection and companionship of the husband, and financial, that is the right to support and maintenance in accordance with the husband’s rank and station.

A wife’s marital rights do not include the right to have her husband make' a will in her favor.

*238Allegations in a complaint in such action that the husband, because of undue influence exercised , over him by the defendant, made a will bequeathing to her all his property over $50,000 in value, and that such will has been duly admitted to probate, should be stricken out as irrelevant. They tender an issue which is no part of the cause of action.

Appeal by tbe defendant, Minnie Pfeiffer, from an order of tbe Supreme Court, made at tbe New York Special Term and entered in tbe office of the clerk of tbe county of New York on the 18th day of May,-1911,- denying the'defendant’s motion, to strike out certain allegations in the complaint as irrelevant or redundant or both.

*Benjamin Scharps*of counsel *[Scharps & Scharps,*attorneys], for tbe appellant.

*Cornelius J. Earley,*for tbe respondent.

Clarke, J.:

The complaint alleges that tbe plaintiff was married to Joseph P. O’Gorman on the 20th day of February, 1895, and was bis wife until bis death, which occurred on the 13th of March, 1910; that in March, 1902, the defendant alienated the affections of the plaintiff’s husband and induced and willfully and maliciously enticed him to desert plaintiff and harbored and detained him against the will of the plaintiff until his death, and willfully and maliciously debauched him, and she demands damages for $75,000. ' ■

The 4th and 5th allegations of the complaint' are as follows: “ *Fourth.*That previous to the death of said Joseph F.. O’Gorman, deceased, and by reason of the foregoing acts of the defendant, the said Joseph F. O’Gorman, because of the unlawful and undue influence exerted upon him by the said defendant, made and executed a last will and testament wherein and whereby he bequeathed and devised all his estate to the said defendant and made her the sole executrix thereof. *Fifth.*That said la'st will and testament has been duly admitted to probate and thereby the defendant has become possessed of and obtained title to the-property of the said Joseph F. O’Gorman, deceased, of the value of about Fifty thousand ($50,000) dollars, subject to this plaintiff’s dower rights therein.” The *239defendant made a motion for an order striking out the said allegations and from the order denying the said motion this appeal is taken.

In *Bennett*v. *Bennett*(116 N. Y. 584), cited with approval in *Kujek*v. *Goldman*(150 id. 176), Judge Vann said: “The actual injury to the wife from the loss of *consortium,*which is the basis of the action, is the sam¿ as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives to each the same rights in that regard. Each is entitled to the comfort, companionship and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in charactei and attach to the husband as husband and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation not only of a natural right, but also of a legal right arising out of the marriage relation. It is a wrongful interference with that which the law both confers and protects,” And Judge Bradley, in the same case, said: *“*This action is founded upon the disregard of the duties of the marital relation by the husband of the plaintiff, induced by the defendant, to the prejudice of the plaintiff. Marriage is a civil contract. (2 R. S. 138, § 1; *Clayton*v. Wardell, 4 N. Y. 230.) From such contract spring reciprocal duties of the parties to it, amongst which are those assumed by the husband, of her maintenance and his *consortium,*and thus to contribute to her comfort and enjoyment. To those means of her happiness, so far as practicable, she is entitled. As appeared by the verdict of the jury, the plaintiff’s husband was induced by the defendant to essentially refuse to perform his marital undertaking or to regard her rights in that respect. And the damages arising from the denial to the plaintiffs *[sic]*of such rights result from a breach by the husband, so induced, of the contractual relation of marriage. But such contract is *sui generis,*and differs from all other contracts in so far that the nature of a recovery of damages in an action, founded upon its breach, is as in tort, and the action is deemed as for a personal injury, and, consequently, does not survive the party injured.”

In *Kuhn*v. *Hemmann*(43 App. Div. 108) Mr. Justice Bar*240rett said: “It is well settled that a wife may maintain an action against one who has enticed her husband from her or deprived her of the comfort of his society. . 3⁄8 3⁄8 3⁄8 This action is not to recover damages sustained by the plaintiff as a result of the criminal conversation of her husband, 3⁄8 3⁄8 3⁄8 but for the loss of *.consortium.**' * 3⁄8 The damages claimed are alleged to have been sustained by reason of the plaintiff’s deprivation — resulting from the defendants’ acts and inducements — of the c comfort, society, aid, assistance, affection, sup-. port and maintenance ’ of her husband. Mere marital infidelity would not suffice to maintain such an. .action, for the' marital infidelity alone did not cause the wrongs of which the plaintiff 1⁄8 now complaining.” "

In *Romaine*v. *Decker*(11 App. Div. 20) Mr. Justice Culler said:. “It is settled by authority that in this State a married woman may recover damages from another woman for,enticing away her husband and depriving her of his comfort, aid, protection and support.”

In 21 Cyc. 1622 it is said:. “ The wife may recover as damages the value of her support and loss of *consortium.”*

*In Buchanan*v. *Foster*(23 App. Div. 542) Presiding Justice-Van Brunt said: “The rule- as laid- down by the authorities seems to be . that the basis or gist of the action is the loss of *consortium*and not merely the loss of assistance, and that in order to maintain the action it must be established that the defendant has wrongfully induced the husband to- abandon his .wife. ”

The gist of the action being the loss of. *consortium,*the deprivation of marital rights caused by the act of the defendant, the question is, what are the marital rights of which plaintiff was deprived and for which she may recover damages? Those rights are of two classes; one personal, the society, the affection, the. companionship of the husband; the other, financial, the right to be maintained and supported during his life in accordance with his rank and station. On his death, of course, she is also entitled to receive dower in his real estate, but of this she has not been and could not be deprived by any act of the defendant.

In the paragraphs in question plaintiff complains that her husband made his will in favor of the defendant; but the right *241to make a will is given by law to every person of legal age and of sound and disposing mind and her marital rights do not include the right to have him make a will in her favor. There is no law which *requires*any one to make a will. Bút she alleges that her husband was induced to make this will by the unlawful and undue influence of the defendant. That is a proper subject of consideration upon the probate of the will or .in an action brought under section 2653a of the Code of Civil Procedure, but she alleges distinctly that said will, has been duly admitted to probate. If so, I do not think questions affecting the validity of that will can be tried out ■ in this action. Hence I conclude that the allegations complained of are irrelevant and redundant to the cause of action set up in the complaint and should be stricken therefrom. They tender an issue which is no part of the cause of action and which the defendant should not be compelled to answer.

The' order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and the motion' granted, with ten dollars costs..

Irgraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.