June 21, 1934.
Appeal from Supreme Court of New York County.
Stanley W. Schaefer of counsel [ Haight, Smith, Griffin Deming, attorneys], for the plaintiffs.
Mark W. Maclay of counsel [ John Tilney Carpenter and Sidney J. Kaplan with him on the brief; Morgan Lockwood, attorneys], for the defendant.
Present — FINCH, P.J., MERRELL, MARTIN, O'MALLEY and UNTERMYER, JJ.; MERRELL and MARTIN, JJ., concur in the reversal of the judgment in favor of the plaintiff Marion M. Klein, upon the additional ground that the verdict is against the weight of the credible evidence.
To properly consider the unfortunate incident which has resulted in the above-entitled actions, it would be necessary to go into many details which are better left unwritten.
We have reached the conclusion, however, that because of the exclusion of important testimony, there must be a new trial of the action. Evidence offered to show plaintiff's inclination to submit to an act of intercourse shortly before the assault complained of was competent and should have been received. This applies particularly to the testimony of the witness Solana called by the defendant.
In Ford v. Jones (62 Barb. 484), which was a case involving a charge of assault and battery, where the plaintiff charged the defendant, her family doctor, with having taken indecent liberties with her person and attempted sexual intercourse, the court said: "The probabilities of assent, or of non-resistance are a legitimate inference from the fact of former promiscuous intercourse, or former particular acts of lewdness. And, indeed, if the assent is established, there was no assault and battery." (See, also, Gulerette v. McKinley, 27 Hun, 320, to the same effect.)
The judgment in favor of plaintiff Marion M. Klein should be reversed and a new trial ordered, with costs to the defendant to abide the event. The order denying plaintiff's motion to direct the clerk to compute interest on the verdict should be vacated.
The judgment dismissing the complaint of plaintiff Henry L. Klein, in his action founded on a breach of contract, should be affirmed, with costs to the defendant against said plaintiff.
In the first case: Judgment reversed and a new trial ordered, with costs to the defendant to abide the event. Order appealed from denying plaintiff's motion to direct the clerk to compute interest on the verdict and add the same to the judgment vacated.
In the second case: Judgment affirmed, with costs.