Art. 6. Defenses.

alienating the husband's affections and enticing him away, evidence that the defendant upon learning of his son's marriage became exasperated and said he would not allow them to live together if it cost ten thousand dollars, not coupled with any evidence tending to show that he attempted to carry out his threat or that he ever persuaded his son not to live with his wife, is insufficient to establish liability. Rubenstein v. Rubenstein, 60 App. Div. 238, 69 N. Y. Supp. 1067, 103 St. Rep. 1067.

In England and Canada it has been held that the prior separation of the plaintiff and his wife by articles of separation or a parol agreement is a bar to an action for criminal conversation. This rule is followed in Pennsylvania. But the contrary is the rule in most other States. See 8 Am. & Eng. Encyc. of Law (2d ed.), 263.

For a case where the defendant married the plaintiff's wife in reliance upon a void foreign divorce, and where it was held that he had the right to court and marry her, see Hollister v. Valentine, 69 App. Div. 582, 75 N. Y. Supp. 115, 109 St. Rep. 115.

SUBDIVISION 2.

Collusion, Condonation, Consent.

The law is clearly settled that in an action for criminal conversation if the husband consents to the wife's adultery, it is a bar to the action. If he is guilty of negligence, or loose or improper conduct, not amounting to consent, it goes in reduction of damages. Bunnell v. Greathead, 49 Barb. 106.

Where an action is brought by a husband for alienation of his wife's affections, the defendant may set up and prove the adultery

Art. 6. Defenses.

of the plaintiff; that he had bragged and boasted about it to his wife, and that he had importuned her to have intercourse with other men. Such facts may amount to a complete defense, and in any event are competent in mitigation of damages. Schorn v. Berry, 63 Hun, 110, 43 St. Rep. 508, 17 N. Y. Supp. 572. The court said: "In an action for criminal conversation if the husband consents to his wife's adultery, it is a bar to an action, whether the consent be general, by giving a general license to his wife to conduct herself as she pleases with men generally, or by assenting to a particular act of adultery charged." Citing Winter v. Henn, 4 C. & P. 498; Bunnell v. Greathead, 49 Barb. 106; Cibber v. Sloper, cited in Duberly v. Gunning, 4 Term R. 655; Sanborn v. Neilson, 4 N. H. 501; Cook v. Wood, 30 Ga. 891.

SUBDIVISION 3.
Justification.

* * *

* * *

In Bennett v. Smith, 21 Barb. 442, it is stated that in an action for enticing away a wife "there is a clear distinction between the cases where the action is against a parent of the wife and where it is against a stranger. Parents are under obligations, by the law of nature, to protect their children from injury and relieve them when in distress; This is recognized by the common law, and is the foundation of the rule which allows parents to do some things in respect to and in behalf of their children which are not allowed to be done by others. This duty of protection, in reason and justice, extends to wrongs done or threatened by a husband as well as by other persons, and the acts of parents are entitled to be regarded in the same spirit in such a case as in others. Where the conduct of the husband is such as to endanger the personal safety of his wife, or is so immoral and indecent as to render him grossly unfit for her society, so much so that she would be justified in abandoning him, her parents ought to and I have no doubt have, the right, not only to receive her into, and allow her the comforts of their house, which even a stranger may do in such a case, but also to advise her to come and remain there. * And the same doctrine, in my judgment, is applicable to a case where the advice is given by a parent in the honest belief, justified by information received by him, that such circumstances exist, although the information may subsequently prove to have been unfounded."

* *

Art. 6. Defenses.

See Smith v. Lyke, 13 Hun, 204, holding that in actions for harboring the wife the material point of inquiry is the intent with which the defendant acted.

Where the loss of consortium is the gravamen of the action, query whether the defendant can justify the interference with the plaintiff's marital rights by showing that the plaintiff's husband had entered into carnal relations with the defendant's daughter prior to such interference and without their knowledge. Kuhn v. Emmann, 43 App. Div. 108, 59 N. Y. Supp. 341.

See

It seems that the poverty of the husband is rather an aggravation in cases where he is deprived of her assistance. "It is the duty of the wife to live with him and assist him in improving his affairs." Bennett v. Smith, 21 Barb. 446.

It has been held that in an action for enticing away, the defendant, in order to justify his interference in removing the wife from plaintiff's house, is bound to show that she was abused, and mere statements that she was abused, without proof thereof, are no defense. Neither are the statements of the wife that she was abused sufficient. Barnes v. Allen, 30 Barb. 668.

The defendant may show that the plaintiff had carnal connection with other men at any time after marriage and before trial, in mitigation of damages. Schorn v. Berry, 63 Hun, 110, 43 St. Rep. 508, 17 N. Y. Supp. 572, citing Smith v. Martin, 15 Wend. 270; Shattuck v. Hammond, 46 Vt. 466; Rhea v. Tucker, 51 Ill. 110.

SUBDIVISION 4.

Plaintiff's Husband was Wrongdoer.

Where an action is brought by the wife against another woman for alienation of her husband's affections, she must show affirmatively that the defendant did or said something with a willful and wrongful intent to engage the husband's affections and seduce him from fidelity to his wife. The law imputes no fault to the defendant because of her attractiveness, or because she may have been pleased with the attentions of the plaintiff's husband. Whitman v. Egbert, 27 App. Div. 374, 50 N. Y. Supp. 3, citing Van Olinda v. Hall, 88 Hun, 452; Manwarren v. Mason, 39 Hun, 40; Eldredge v. Eldredge, 79 Hun, 511; Bennett v. Bennett, 116 N. Y. 584; Buchanan v. Foster, 23 App. Div. 542. See Romaine v. Decker, 11 App. Div. 20, 43 N. Y. Supp. 79.

Where the complaint, after alleging that the defendant maliciously alienated the affections of the plaintiff's wife, and debauched and carnally knew her, alleged that in consequence, etc., of such criminal relations her affections were alienated, and she was wrongfully induced and enticed by the defendant to leave plaintiff, and that by reason of the premises the affection which she previously had for plaintiff was alienated and destroyed, and plaintiff deprived of her comfort and society, etc., to his distress of mind and damage, etc. Held, that the complaint stated but a single cause of action for criminal conversation, and that the allegation of alienation of affection and enticement were by way of damage. Currie v. Gardenier, 59 App. Div. 319, 69 N. Y. Supp. 245, 103 St. Rep. 245.

For a complaint alleging alienation of affection, which was sustained upon demurrer, see Heermance v. James, 47 Barb. 120, 32 How. Pr. 142.

For a complaint which was held to state a cause of action both for criminal conversation and alienation of affection, see Hollister v. Valentine, 69 App. Div. 582, 75 N. Y. Supp. 115, 109 St. Rep.

115.

SUBDIVISION 2.
Answer.

The answer may allege the adultery of the plaintiff; that he bragged and boasted about it to his wife, and that he importuned her to have intercourse with other men. Such matters should not be stricken out as irrelevant, redundant, or scandalous. Schorn v. Berry, 63 Hun, 110, 43 St. Rep. 508, 17 N. Y. Supp. 572.

In an action for alienating the affections of her husband, allegations of his previous divorce and separation should be stated to

Art. 7. Pleading.

be a partial defense, and if the pleader omits to so state them, an order will be granted requiring defendant to make these allegations more definite and certain, so that it will clearly appear whether they are intended as a complete or partial defense. Simmons v. Simmons, 21 Abb. N. C. 469, 4 N. Y. Supp. 221.

SUBDIVISION 3.

Bill of Particulars.

In an action for criminal conversation the court of original jurisdiction has power to require the plaintiff to furnish a bill of particulars, and the denial of such application, based solely upon the ground of want of power, is reviewable by the Court of Appeals. Tilton v. Beecher, 59 N. Y. 176.

As to when a bill of particulars will be denied, see Van Olinda v. Hall, 82 Hun, 357, 64 St. Rep. 94, 31 N. Y. Supp. 495. It was held that the failure of the defendant to deny the charges of the complaint raised an inference that the facts alleged in the complaint were within her knowledge.

See Schaffer v. Holm, 28 Hun, 264, 3 Civ. Proc. 81, for a case in which an order for bill of particulars was granted. The charges of adultery were upon information and belief, and, on motion, the plaintiff stated that the matters were not within his personal knowledge and that he believed it would not be safe for him to make a verified bill. Defendant's motion for bill of particulars was granted.

A bill of particulars was refused in an action brought by the wife where the only charge was that her husband's uncle had alienated her husband's affections and had broken up her home by the continued depreciation of the plaintiff. Kirby v. Kirby, 34 App. Div. 25, 54 N. Y. Supp. 1074.

In an action for criminal conversation where the complaint alleged that the affections of the plaintiff's wife had been alienated by means of "gifts, presents, promises, threats, and seductive arts and wiles," it was held that a case was made out for a bill of particulars. Woods v. Gledhill, 35 St. Rep. 597, 20 Civ. Proc. 155, 12 N. Y. Supp. 764.

Where, on order, the plaintiff filed a bill of particulars, stating certain adulterous intercourse and his inability to state the date of other adulterous intercourse, which order for a bill of particulars was not appealed from, and where a subsequent order was