It is regretted that the memory of this ease must be revived in a respectable community. While the finding that plaintiff was hired is not against the weight of the evidence, yet it was error to exclude plaintiff’s own valuation of bis services, and to admit evidence of the wages of day laborers. It was also error to admit evidence of non-intercourse with other persons, as that fact, if it was such, could not have induced him to engage the plaintiff. The evidence of intercourse with others was properly rejected, even though it was communicated to the defendant by third persons. The judgment and order of the County Court of Nassau county should be reversed and a new trial ordered, costs to abide the event. Thomas, Stapleton, Rich and Putnam, JJ., concurred; Jenks, P. J., concurred in result in a separate memorandum.
Jenks, P. J.:I do not assent to the final holding of the court, stated in the opinion. If before the alleged making of the contract the defendant had been informed by third persons that this woman, at or about the times of his relations with her, had maintained illicit relations with other men, I think that the defendant should be permitted to give proof of such information. A jury might well conclude that a man would be less likely to make such a contract with reference to a woman of general loose character than a woman who he supposed had been unchaste with him only. His paternity of the child would be more in doubt, much more difficult to establish, and a publication of his illicit relations might be less harmful, if the proof thereof rested in part upon the word of a woman of the town. Of course such evidence would be hearsay as to the fact of her unchastity with others, but not as to whether defendant had been informed of such unchastity. Although the proposition was whether defendant had made the contract, this evidence was relevant if it tended to make “ more or less probable the proposition at issue.” (1 Whart. Ev. [3d ed.] § 21.) I, therefore, concur in the result. Judgment and order of the County Court of Nassau county reversed and new trial ordered, costs to abide the event.