Van Ness, J.
That an action will lie by the husband against any person who unlawfully persuades, and procures his wife to live apart from him, is not to be denied. There is, however, a feature in the present case, which distinguishes it, in point of fact, from any other that has come under my observation. The suit is against the father of the wife. That circumstance, however, cannot vary the rights of the husband ; nor take this case out of the general principles which form the basis of this action.
The first question which is presented for consideration, is, whether the defendant has caused the separation of which the plaintiff complains. This was a question of fact submitted to the jury, who having found for the plaintiff, their decision must be final; unless this court should be of opinion that the verdict is not supported by the evidence. There can be but little doubt, that if the wife had been left to her own volition, she would have returned to her husband. Before the unfortunate interference of the defendant, she appears to have been contented and happy. She had never suffered for the want of the necessaries, or conveniences of life.
She had been treated, for aught that appears, with ten[204]*204derness, and her attachment to her husband was undiminished. That she should, under such circumstances, have voluntarily deserted him, is incredible. But she did desert him ; and seeing the effect, it is easy to trace it to its true cause. The defendant, by the exercise of parental influence and authority ; by means of threats at one time, and promises at another; by refusing to restore to her her furniture, under the pretext that it was his, finally succeeded in his design to produce a separation. I am satisfied the jury did not err in their judgment, on this part of the case.
The question then arises, whether this interference of the defendant has been justified i I think it has not. If the injury complained of, has been sufficiently shown, the defendant’s standing in the relation of a father to the wife, is an immaterial circumstance. Upon her marriage, which appears to have been with the defendant’s consent and approbation, his right to the society and services of his daughter, was transferred to her husband; and for a violation of that right, the husband has his action, whoever may be the offender. I am now speaking of the marriage contract, as a civil contract, and of the marital rights which are legally acquired under it. It would be useless here to state in what instances the parent of the wife is authorised to interfere between Irel- and her husband. I will confine myself to the justification relied on in the case.
If the defendant received his daughter into his family from motives of humanity, and with a view to shield her from present or impending distress, he was justifiable. The jury have found, and they were justified by the evidence to find, that such were not his motives. We cannot be at a loss to discover the reasons by which the defendant really was influenced. He unfolded his whole plan to one of the witnesses, (Ando Fraser,) at the time when his daughter came to his house, upon her [205]*205removal from Claverack. He stated, “ that he was apprehensive he would soon have to maintain her, and that if he did not take her home then, he would have to do it soon.” It is not true that there was any just ground for such apprehension. From the testimony it appears that there never was a period when the plaintiff did not possess the disposition and ability to support his wife, to whom he was fondly attached, in the same manner he had previously done. Shall a parent then be indulged in separating the wife from her husband, whenever he chooses to say, he entertains an apprehension, that at some future period, he may be compelled to support her ? As long as the wife owes to her husband loyalty and assistance, it is not permitted to any one, to seduce her from the performance of her duty, for such a reason. It is said the motives of the defendant were pure. Admitting they were so, that cannot affect the plaintiff’s right to recover. The true and the only inquiry is, has the conduct of the defendant occasioned damnum cum injuria to the plaintiff. If both have been shown, this action is maintainable. If it was the duty of the wife to return to her husband, the defendant did an unlawful act by persuading her to violate that duty. If the wife was unjustifiable in abandoning the plaintiff, the defendant is responsible for having enticed and persuaded her to abandon him. The good motives of the parent, therefore, do not always afford a defence against this action.
In the case of Wensmore v. Greenbank, (Willes's Rep. 581.) the court ruled, that “ though it should belaid, that the plaintiff lost the comfort and assistance of his wife; yet if the fact that is laid by which he lost it, be a lawful act, no action can be maintained. By injuria is meant a tortious act; it need not be -wilful and malicious, for though it be accidental, if it be tortious, an action will lie.”
[206]*206That a parent’s conduct, in cases like the present, is t© be liberally construed, and that worthy motives are to be presumed, I fully admit. This is clearly the dictate 0f g0th reason and nature.
I agree that if the defendant had not been instrumental in procuring his daughter to live apart from her husband, and he had gone no further than to receive and support her, that this action could not be sustained; and then the case of Philp v. Squire (Peake’s N. P, Rep. 82.) would have been in point. Very different, however, will be the conclusion, when the parent unlaw- • fully produces the separation, by sowing the seeds of discord and hatred ; thereby poisoning the sources of domestic harmony and enjoyment.
The remarks of Ch. J. Willes, in Wensmore v. Greenbank, fully apply to the case under consideration. In answering one objection made to the sufficiency of the declaration, he says, “ To be sure it must be an unlawful-procuring. It is not necessary to set forth all the facts to ■ show how it was unlawful. It was said, however, that at least it was necessary for the plaintiff to add, “ by false insinuations j” but it is not material whether they were true or false ; if the insinuations were true, and by means of those the defendant persuaded the plaintiff’s wife to do an unlawful act, it was unlawful in the defendant.” And again, “ Every moment that a 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 anew injury, and cannot but know it.” In my opinion the .plaintiff is entitled to recover; and the only remaining question is, whether we can set aside the verdict on the ground that the damages are excessive.
I have examined the cases on the subject, and though there is no doubt that the court has the right to grant new trials, when it is apparent that the damages are out[207]*207raffeously disproportionate to the injury committed, yet ° J 1 1 , it is a power which ought to be cautiously exercised, y The conduct of the defendant here was unlawful, and the . injury done to the plaintiff is a serious one.
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Van Ness, J.
That an action will lie by the husband against any person who unlawfully persuades, and procures his wife to live apart from him, is not to be denied. There is, however, a feature in the present case, which distinguishes it, in point of fact, from any other that has come under my observation. The suit is against the father of the wife. That circumstance, however, cannot vary the rights of the husband ; nor take this case out of the general principles which form the basis of this action.
The first question which is presented for consideration, is, whether the defendant has caused the separation of which the plaintiff complains. This was a question of fact submitted to the jury, who having found for the plaintiff, their decision must be final; unless this court should be of opinion that the verdict is not supported by the evidence. There can be but little doubt, that if the wife had been left to her own volition, she would have returned to her husband. Before the unfortunate interference of the defendant, she appears to have been contented and happy. She had never suffered for the want of the necessaries, or conveniences of life.
She had been treated, for aught that appears, with ten[204]*204derness, and her attachment to her husband was undiminished. That she should, under such circumstances, have voluntarily deserted him, is incredible. But she did desert him ; and seeing the effect, it is easy to trace it to its true cause. The defendant, by the exercise of parental influence and authority ; by means of threats at one time, and promises at another; by refusing to restore to her her furniture, under the pretext that it was his, finally succeeded in his design to produce a separation. I am satisfied the jury did not err in their judgment, on this part of the case.
The question then arises, whether this interference of the defendant has been justified i I think it has not. If the injury complained of, has been sufficiently shown, the defendant’s standing in the relation of a father to the wife, is an immaterial circumstance. Upon her marriage, which appears to have been with the defendant’s consent and approbation, his right to the society and services of his daughter, was transferred to her husband; and for a violation of that right, the husband has his action, whoever may be the offender. I am now speaking of the marriage contract, as a civil contract, and of the marital rights which are legally acquired under it. It would be useless here to state in what instances the parent of the wife is authorised to interfere between Irel- and her husband. I will confine myself to the justification relied on in the case.
If the defendant received his daughter into his family from motives of humanity, and with a view to shield her from present or impending distress, he was justifiable. The jury have found, and they were justified by the evidence to find, that such were not his motives. We cannot be at a loss to discover the reasons by which the defendant really was influenced. He unfolded his whole plan to one of the witnesses, (Ando Fraser,) at the time when his daughter came to his house, upon her [205]*205removal from Claverack. He stated, “ that he was apprehensive he would soon have to maintain her, and that if he did not take her home then, he would have to do it soon.” It is not true that there was any just ground for such apprehension. From the testimony it appears that there never was a period when the plaintiff did not possess the disposition and ability to support his wife, to whom he was fondly attached, in the same manner he had previously done. Shall a parent then be indulged in separating the wife from her husband, whenever he chooses to say, he entertains an apprehension, that at some future period, he may be compelled to support her ? As long as the wife owes to her husband loyalty and assistance, it is not permitted to any one, to seduce her from the performance of her duty, for such a reason. It is said the motives of the defendant were pure. Admitting they were so, that cannot affect the plaintiff’s right to recover. The true and the only inquiry is, has the conduct of the defendant occasioned damnum cum injuria to the plaintiff. If both have been shown, this action is maintainable. If it was the duty of the wife to return to her husband, the defendant did an unlawful act by persuading her to violate that duty. If the wife was unjustifiable in abandoning the plaintiff, the defendant is responsible for having enticed and persuaded her to abandon him. The good motives of the parent, therefore, do not always afford a defence against this action.
In the case of Wensmore v. Greenbank, (Willes's Rep. 581.) the court ruled, that “ though it should belaid, that the plaintiff lost the comfort and assistance of his wife; yet if the fact that is laid by which he lost it, be a lawful act, no action can be maintained. By injuria is meant a tortious act; it need not be -wilful and malicious, for though it be accidental, if it be tortious, an action will lie.”
[206]*206That a parent’s conduct, in cases like the present, is t© be liberally construed, and that worthy motives are to be presumed, I fully admit. This is clearly the dictate 0f g0th reason and nature.
I agree that if the defendant had not been instrumental in procuring his daughter to live apart from her husband, and he had gone no further than to receive and support her, that this action could not be sustained; and then the case of Philp v. Squire (Peake’s N. P, Rep. 82.) would have been in point. Very different, however, will be the conclusion, when the parent unlaw- • fully produces the separation, by sowing the seeds of discord and hatred ; thereby poisoning the sources of domestic harmony and enjoyment.
The remarks of Ch. J. Willes, in Wensmore v. Greenbank, fully apply to the case under consideration. In answering one objection made to the sufficiency of the declaration, he says, “ To be sure it must be an unlawful-procuring. It is not necessary to set forth all the facts to ■ show how it was unlawful. It was said, however, that at least it was necessary for the plaintiff to add, “ by false insinuations j” but it is not material whether they were true or false ; if the insinuations were true, and by means of those the defendant persuaded the plaintiff’s wife to do an unlawful act, it was unlawful in the defendant.” And again, “ Every moment that a 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 anew injury, and cannot but know it.” In my opinion the .plaintiff is entitled to recover; and the only remaining question is, whether we can set aside the verdict on the ground that the damages are excessive.
I have examined the cases on the subject, and though there is no doubt that the court has the right to grant new trials, when it is apparent that the damages are out[207]*207raffeously disproportionate to the injury committed, yet ° J 1 1 , it is a power which ought to be cautiously exercised, y The conduct of the defendant here was unlawful, and the . injury done to the plaintiff is a serious one. The mea1 sure of damages depends on sentiment and opinion ; and I am compelled to say, in the language of another, that 61 although I feel great difficulties on one side and the other, I have not courage enough to make the first precedent of granting a new trial, under such circumstances as the present.” (Lord Kenyon, in Duberly v. Gunning, 4 Term Rep. 651.) I am satisfied that to set aside a verdict in such an action as this, on the ground that the damages are excessive, would be directly against a series of adjudged cases, both in this court and in England; and much as I regret that the damages are so high, I cannot agree to bend the settled rules of law, to grant relief against the hardship of a particular case.
My opinion, upon the whole, is, that the motion for a new trial ought to be denied.
Spencer, J.
The defendant is the father of the plaintiff’s wife; she came to the defendant’s house, by the consent of her husband; the defendant has continued to afford her shelter and support, after having been forbidden by the plaintiff. No other means have been made use of by the defendant to detain her, than declarations, that if she remained with him, she should fare as his other children ; but if she went away, she should have no part of his estate; and it was always left to her option to go or to stay. The jury gave 1,200 dollars damages.
It is believed that the books furnish no precedent for this kind of action, for the abduction of the wife, against her father, who only affords her an asylum ; leaving it to her free will to go or to remain. The novelty of the action is no argument against its being sustained ; and if a father shall maliciously and improperly afford protection, [208]*208even to his child, against the will of her husband, and thereby deprive him of the comforts he is entitled to cu-joy from her aid and society, most undoubtedly aii action will lie. In the present case, I confess, my impression from reading the case is, that the defendant was influenced altogether by parental affection, in doing what he did. The house the plaintiff had provided for his dwelling appears to have been old and ruinous, and his wife was in delicate health ; and I perceive no foundation for the opinion that the defendant maliciously meditated a separation between the husband and wife. On the latter ground alone the jury must have proceeded in giving such severe damages. I am not satisfied that the plaintiff was entitled to recover ; but I am perfectly satisfied,that he was not entitled to recover, as for having maliciously and causelessly meditated a separation of the plaintiff from his wife. Without, therefore, saying that the damages given in this case would be excessive, had the plaintiff made out his case, I think the court have aright to regard the amount of the verdict in exercising their discretion as to awarding a new trial, under the peculiar circumstances of this case. Accordingly I am of opinion, that there should be a new trial.
Yates, J. was of the same opinion.
Thompson, J.
This was an action on the case, for enticing away the plaintiff’s wife by the defendant, wh© was her father. Although the light in which the law views a charge of this description, may warrant the maintenance of an action against the father, when the circumstances are aggravated ; yet no case of the kind is, I believe, to be found in the books ; and, in my judgment, such a case ought not to be considered as standing on the same footing as if the action was against a stranger. A father is bound, by the laws of nature, to afford protection [209]*209and comfort to his child ; and the same acts which in him -ought to be considered as proceeding from parental affection, might in a stranger be deemed to proceed from improper and unjustifiable motives. The bare harbouring -of a married woman by a stranger, from motives of humanity, will not give to the husband a right of action. (Peake’s N. P. 82.) Although in the present case the plaintiff might have been able to furnish his wife with the. necessaries of life, yet it is evident she was deprived of many of the comforts and conveniencies to which she had probably been accustomed. No coercion or parental authority was made use of to detain'her. The uniform language of the defendant to her was; that she might go and live with the plaintiff if she chose ; and if the inducements held out to her to remain with her father, were carried beyond the bounds of prudence and discretion, still they ought to be viewed with many grains of allowance, as proceeding from parental tenderness. It does not appear to me, that due weight was given upon the trial, either by the judge or the jury, to the distinction I have suggested, between this case and one where the action is against a stranger. The quo animo, with which the defendant acted, ought to have been made the material point of inquiry; and from the facts and circumstances detailed in the case, I should very much doubt the correctness of the conclusion, that the defend? ant must have been actuated by illegal and corrupt motives. Under all circumstances, taking into considerution the novelty of the action, I think it is one-of those cases, in which a due regard to the ends of justice, and a discreet exercise of the power of the court, fully warrant us in sending back the cause to another jury.
Kent, Ch. J.
I am also for a new trial. If the defend? ant did not stand in the relation of father to the plain[210]*210tiff’s wife, I should not, perhaps, be inclined to interfere t^e verdict. But that relationship gives the case a new and peculiar interest; this is the first action of the kind I have met with, brought against the father. A father’s house is always open to his children; and whether they be married or unmarried, it is still to them a refuge from evil, and a consolation in distress. Natural affection establishes and consecrates this asylum. The father is under even a legal obligation to maintain his children and grandchildren, if he be competent, and they unable to maintain themselves ; and according to Lord Coke, it is “ nature’s profession to assist, maintain and console the child.” I should require, therefore, more proof to sustain the action against the father, than against a stranger. It ought to appear either that he detains the wife against her will, or that he entices her away from her husband, from improper motives. Bad or unworthy motives cannot be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed. This principle appears tome to preserve, in due dependence upon each other, and to maintain in harmony, the equally strong and sacred interests qf the parent and the husband. The quo animo ought, then, in this case, to have been made the test of inquiry and the rule of decision. The judge told the jury, that if the defendant was not actuated by improper motives, it would go very far in mitigation of damages, I think the instruction should have gone further, and the jury have been informed, that in such a case the verdict should be for the defendant, I am accordingly of the opinion^ that a new trial should be awarded, with costs to abide the event of the suit.
New trial granted.