Opinion
May 11, 1917.
Carl J. Heyser, for the appellant.
Frank W. Shaw, for the respondent.
In September, 1914, plaintiff had separated from her husband, Frank Loper, who kept a livery stable and doctored horses in the village of Patchogue, L.I. This action was begun December 29, 1915, against Mrs. Askin, who had a hotel at Medford, L.I. At the conclusion of plaintiff's case defendant moved for a dismissal, and having excepted to such refusal to dismiss, offered no evidence for the defense. The jury rendered a verdict for $2,250.
Plaintiff's testimony failed to establish her case. The action for enticing away one from his contract relations (even those of master and apprentice) requires proof that defendant knew of the relations he was breaking up. ( Stuart v. Simpson, 1 Wend. 376.) Hence this complaint properly charged defendant with "contriving and wilfully intending to injure the plaintiff and to deprive her of the comfort, society, aid, assistance and consortion of the husband." This allegation seems essential. ( Webber v. Benbow, 211 Mass. 366.) Plaintiff must make out wrongful and willful intent to engage the husband's affection and thereby to seduce him from fidelity to his wife. ( Whitman v. Egbert, 27 App. Div. 374.) Facts must also appear from which it may be inferred that the woman defendant was the pursuer, not merely the pursued. She does not become liable because she may have accepted the admiration of plaintiff's husband. ( Buchanan v. Foster, 23 App. Div. 542. See Churchill v. Lewis, 17 Abb. N.C. 226.)
As the wrong involves moral turpitude, no presumption of guilt can be indulged, unless the facts cannot be otherwise reconciled. ( Buchanan v. Foster, supra.)
Defendant lived in Medford, some four miles from Patchogue, plaintiff's home. The record is destitute of proof of scienter. If the incident of plaintiff's sudden attack on defendant at the Mineola fair in the fall of 1915 might give rise to an inference that the assailing woman was the wife of defendant's escort, which may be doubtful, still there is no evidence of acts of association between defendant and Loper subsequent to that date.
When the plaintiff rested, her cause of action was not made out. Hence no inference could be drawn because defendant was not sworn. Defendant is not called upon to introduce evidence to contradict or explain facts which were insufficient to establish any liability against her. ( Shotwell v. Dixon, 163 N.Y. 43, 54.)
The judgment and order should, therefore, be reversed, and a new trial granted, costs to abide the event.
JENKS, P.J., and BLACKMAR, J., concurred; MILLS and RICH, JJ., dissented.
Judgment and order reversed on reargument and new trial granted, costs to abide the event.