Schnell v. Blohm

The defendant is living in adulterous intercourse with the wife of the plaintiff. It is true the wife procured a divorce in Iowa, and the defendant married her there; but the decree of divorcement has no operation or validity in this State. (O’Dea v. O’Dea, 101 N. Y., 23.)

This action is for criminal conversation, and the defendant appeals from an order of arrest granted against him therein. He contends that the plaintiff’s right to recover for the wrong done him was exhausted by a judgment against him in an action for enticing away the woman, brought and terminated before the divorce and marriage to the defendant.

¥e cannot agree to this proposition. The enticement of a man’s wife from him, and from her home and child, is a wrong of sufficient magnitude, but a fresh sting is imparted to the injury when *380tbe seducer, in the face of the world, commences an adulterous intercourse. For that new and increased wrong another action may be commenced and another judgment recovered. (3 Black. Com., 139.) Even if the plaintiff’s former recovery had been for the seduction and debauchery of his wife, he could still maintain this action; for “ every moment that the wife continues absent from her husband without justifiable cause, without his consent, is a new tort, and every one who persuades her to do so does a new injury, and cannot but know it.” (Hutcheson v. Peck, 5 Johns., 205.) The defendant injures the plaintiff anew every day he maintains the unlawful and adulterous intercourse with his wife, and so furnishes a fresh cause of action to the plaintiff with each recurring day.

In our view the reliance of the defendant on the Iowa-decree of divorcement is not well reposed. It was adjudged between the parties that the defendant enticed the plaintiff’s wife from him previous to the divorce and the trip to Iowa. The divorce and the marriage were but the continuance and consummation of the original outrage and wrong.

The order should be affirmed, with ten dollars costs and disbursements.

The former recovery for alienating the wife’s affections, though relevant and competent upon the question of damages, do not constitute a bar to the present action. Neither the judgments in plaintiff’s favor nor its satisfaction had any effect to diminish his marital rights. They continued, and on any infringement by defendant or others an action arose.

The Iowa divorce set up in defendant’s papers is not necessarily a defense to the action. It may be attacked, and if successfully assailed its only relevancy will be upon the question of damages. So of the fact that the plaintiff had instituted an action for divorce. That mav well have much weight upon the question of damages, but it is no bar to the action. It follows that the order made below was within the discretion of the court, which we cannot say was unwisely exercised.

Order affirmed, with costs and disbursements.