Plaintiff in. her complaint charged the defendant with having alienated the affections of her husband by having debauched and lived in adulterous, intercourse with him as his alleged wife, from the Mth day of January, 1908, until the 2Qth. day of November, 1908. Without objection, on. the part, of the defendant the case was tried as upon a general charge for alienating the affections of plaintiff’s, husband, except, that defendant claimed the action to. be one for1 criminal1 conversation, which could not be' maintained by a wife: To support the plaintiff’s
contention evidence was. given without objection of facts, occurring prior to 1.908., The issue as. thus, agreed uponis, therefore, the issue which must determine the competency and relevancy of the evidence given.
The plaintiff’s husband, Guy Strock, first left her in 1899., He was, gene some eight or nine years. ' While he. was gone it is claimed, that, he procured a divorce in the State of Missouri. This; divorce, however, was- obtained without, jurisdiction of this plaintiff. In 29QT, when his daughter was- sick, he returned Jo Jackson Summit, where his wife and daughter were living- He remained several, months, at. that place.. The plaintiff claimed that they were living as husband, and wife, vrMeb the defendant, demies. Soon after the daughter’s- death the hnsbandlefttheplaintiff. He was thereafter fined seventy-five dollars for non-support, which he paid.. In January, 1908, Guy Strock went with the defendant to the State of Missouri, and they there went through a marriage ceremony. They came back to the county of Chemung and thereafter lived as husband and wife.- The defendant, offered in evidence, upon the trial, a letter, which purported to, be. a letter from. a. Circuit judge in the State of Missouri, stating that the decree of divorce obtained by Guy Strock. from Ms. wife, was a valid decree. This- was shown to have been called, to the attention, of the defendant before -her marriage • to Guy Strock in. January, 1908. .To this evidence objection was made that it was-not pleaded. This objection was overruled and an exception taken. " If this evidence were admissible only for the purpose of mitigating damages I think it could not he shown, without a special plea. (Code Civ. Proc. §' 536; Bradner v. Faulkner, 93 N. Y. *485515.) But in -an action for alienation of affections the good faith of the defendant is a material question. (Van Olinda v. Hall, 88 Hun, 452; Smith v. Lyke, 13 id. 204; Barnes v. Allen, 1 Abb. Ct. App. Dec. 111.) Inasmuch, therefore, as the good faith of the defendant was one of the main issues in the case, evidence thereof was admissible under a general denial and without special pleading. The questions were fairly submitted to the jury, both whether the plaintiff’s husband was in fact enticed away from the plaintiff by the defendant, and whether such act was done intentionally. The jury has found with the defendant upon these questions- It is true that the court charged that the plaintiff was in any event entitled to nominal damages. This we assume was upon the theory that the plaintiff was entitled to maintain an action for criminal conversation. As a matter of first impression I should be inclined so to hold. By section 831, however, of the Code of Civil Procedure it is provided that in an action for criminal conversation the plaintiff’s wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant as to any matter in controversy, except as to the disclosure of confidential communications. The purpose of this exclusion would seem to be to prevent collusion between husband and wife. If such be the purpose of the section it is difficult to •understand why the husband also should not be disqualified to testify in behalf of the wife in such an action, if such an action will lie in behalf of the wife. Is not this section in fact a legislative declaration of the law that such an action will not lie in behalf of the wife ? In an action by the husband against another man, the mere act of adulterous intercourse raises a presumption that the defendant induced the wife to such an act. Ho such inference could be indulged in in an action by a wife against another woman for having had adulterous relations with her husband. But it is unnecessary to decide this question in this case. Even though plaintiff were entitled to nominal damages, a verdict of no cause of action would not be set aside for that reason.
In this view of the case the refusal to charge that mitigating circumstances could only be considered by the jury in reduction of exemplary damages is immaterial, by reason of the con*486elusion of the jury that the plaintiff was without any cause of action.
The judgment should, therefore, be affirmed, with costs.
. All concurred, except Kellogg, J., dissenting in memorandum in which Sewell, J., concurred.