Page, J.:
I am of the opinion that the plaintiff cannot maintain this action to recover damages for criminal conversation between the defendant and plaintiff’s husband. Upon the trial it was held that the complaint stated two causes of action, although not separately stated, one' for alienation of affection, and the other for criminal conversation.
The court dismissed the alleged cause of action for alienation of affection, because it appeared that the plaintiff and her husband had not lived together or cohabited as husband and wife for several years prior to the alleged act of adulterous intercourse between the defendant and plaintiff’s husband, and submitted the cause to the jury as one for damages for criminal conversation. By reason of the fact that the complaint was held to state two causes of action, a large amount of immaterial evidence, highly prejudicial to the defendant, was received, and the jury were not properly instructed as to the measure of damages.
The complaint stated only a single 'cause of action to recover [306] damages for criminal conversation. The allegations of alienation of affection and deprivation of the comfort, society, aid, assistance and support of her husband are alleged in the complaint to have been the result of the criminal conversation, for those allegations are connected with and alleged to be the result of the fact set forth in preceding allegations by the use of the phrase, “ by means whereof,” which makes the following allegations a part of the same sentence with that which precedes. Allegations of alienation of affection and loss of consortium and support are appropriate in a complaint for criminal conversation, in aggravation of damages. (Currie v. Gardenier, 59 App. Div. 319; Bigaouette v. Paulet, 134 Mass. 123, 125.)
It was well settled at common law that a wife could not maintain an action against a third person for enticing away her husband, alienating his affections, or criminal conversation with him. After the passage of the acts authorizing a married woman to hold property and contract as a feme sole and to maintain a tort action in her own name for an injury to her person or character (Laws of 1848, chap. 200; Laws of 1849, chap. 375; Laws of 1860, chap. 90; Laws of 1862, chap. 172), there was a diversity of opinion, whether the wife could maintain an action against a third person for alienating the affection of her husband' and thereby depriving her of his society and support. (Cf. Van Arnam v. Ayers, 67 Barb. 544; Jaynes v. Jaynes, 39 Hun, 40.) In Bennett v. Bennett (116 N. Y. 584) it was held that, notwithstanding the repeal of the sections of the acts of 1860 and 1862 (supra), which were regarded applicable (Laws of 1880, chap. 245, § 1, subds. 36, 38), an action for alienation of the affections of her husband could be maintained by a wife by virtue of section 450 of the Code of Civil Procedure,* which gave a married woman capacity to sue as if she were single. That case is cited by Mr. Justice Merrell as an authority for the maintenance of an action by the wife for criminal conversation. In my opinion it is not. The reasoning of the opinion in that case was that the rights of the husband and wife to the affection, society and aid of the other are mutual rights and obligations that arise from the marriage contract, which attach to the husband as husband and to the wife as wife; that any interference with those rights, whether of the husband or the wife, is a violation not only of a natural right, but also of a legal right arising out of the marriage relation; that this constituted an actionable injury for which, at common law, the husband could recover damages, but the wife could not, for she did not have legal capacity to sue; an action to recover for her personal injuries would have to be maintained [307] by the husband and wife jointly, but the damages, if collected, belonged to the husband. If, however, she survived her husband and the damages had not been collected and reduced to possession, they survived to the wife, and did not pass to his estate. Therefore, the wife had a right of action for any actionable injury, at common law, but she could not set the law in motion unless her husband joined. “ When the Legislature provided that she could sue in her own name, without this inconvenient formality, it cut off the right of the husband and permitted her to prosecute and recover for herself.”
The right of a wife to maintain an action for the alienation of her husband’s affections is no longer questioned in this State. (Cochran v. Cochran, 196 N. Y. 86, 89.) But the right of the wife to sue her husband’s paramour for criminal conversation has never been recognized in this State. So far as I have been able to discover, this is the first case in this State in which a verdict has been returned in favor of a plaintiff in an action by the wife against another woman merely because of her having carnal intercourse with plaintiff’s husband. Hodecker v. Strickler (39 N. Y. Supp. 515) was an action in equity for injunctive relief and damages. On demurrer it was held that the plaintiff, a married woman, had no cause of action against the defendant merely because the defendant lived in meretricious relations with the plaintiff’s husband, assuming to bear his surname; the action not being founded on any charge of libel or slander, or that defendant had alienated from the plaintiff the affections of the husband, and there being no allegation that the plaintiff still lived with him or that her cohabitation with him was discontinued for any cause attributable to the defendant. In the course of the opinion the court said: “It is said by counsel that equity will not suffer a wrong without a remedy. This maxim has its limitation in another known as damnum absque injuria, and, further, that obligations, rights and duties merely moral are not the subject of equitable relief; ” and in conclusion: “ The matters alleged in the complaint present moral questions for consideration only in the tribunal of conscience. My examination of the case leads me to the conclusion that the facts alleged in the complaint do not support a cause of action.”
The plaintiff in the Hodecker Case (supra) in some particulars amended her complaint, but not in such a way as to meet the adverse criticism to which the first was subjected. On appeal from the interlocutory judgment entered upon a demurrer, the court said: “ Upon the first decision a very careful and comprehensive opinion was written by Mr. Justice Bradley (39 N. Y. Supp. 515), which commends itself to oqr unqualified approval.” (Hodecker v. Strickler, [308] 20 App. Div. 245, 246.) The right of the wife to recover from the paramour for marital infidelity alone, on the theory that by reason of the defendant’s wrongful influence and inducements she suffered loss of consortium, has been considered in several cases brought for alienation of affection. In Kuhn v. Hemmann (43 App. Div. 108, 111) this court said: “ Mere marital infidelity would not suffice to'maintain such an action, for marital infidelity alone did not cause the wrongs of which the plaintiff is now complaining. There is no evidence whatever to show that she was, in any way, deprived of the ‘ comfort, society, aid, assistance, affection, support and maintenance ’ of her husband up to the time when she left for Europe. It is true that he was then, and had been for some time previous thereto, maintaining a mistress with whom he passed a portion of his time. But of this the plaintiff was in complete ignorance. He still continued to live with and support her, and he ostensibly fulfilled all his marital relations. It is clear, then, that there was, up to this time, no such alienation of affections as would have entitled the plaintiff to maintain an action like the present against these defendants [citations]. Thus, the only injury which plaintiff suffered up to the time of her departure for Europe, was the moral injury resulting from the violation by her husband of his marital allegiance.” In Buchanan v. Foster (23 App. Div. 542, 544) this court said: “ The mere fact that the husband maintains improper relations with the defendant and remains away from bis family does not seem to be sufficient to support the action; there must be some active interference upon the part of the defendant. The fact that a woman is attractive and submissive is not sufficient. There must be some evidence from which the conclusion can be drawn that she was the pursuer and not merely the pursued.”
That a wife cannot maintain an action for criminal conversation, in this State, is so well settled that the Legislature in dealing with the competence of witnesses provided in section 831 of the Code of Civil Procedure (Civ. Prac. Act, § 349): “ 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 that she cannot, without the plaintiff’s consent, disclose any confidential communication had or made between herself and the plaintiff.” (See Strock v. Russell, 148 App. Div. 483, 485.)
The reason for this differentiation between the two actions rests in the fundamental fact that, in one case, there was a personal injury which could not be redressed because of disability of the party to sue, and in the other there was no actionable injury.
[309] When a question arises as to the elements of a common-law action, a reference to- the form of pleadings in such an action is illuminating, for as Ashubst, J., said: “ The forms of pleading are evidence of the law.” (Weedon v. Timbrell, 5 T. R. 357.) In an action for criminal conversation the correct practice was to declare it trespass vi et armis and contra pacem. (1 Chit. PL [16th Am. ed.] *150.) And this was proper even where the wife had consented, for the act of adultery was regarded as an actual trespass upon the marital rights of the husband, although the consequent injury is really to the husband on account of the corruption of the body and mind of the wife, and it was in the view that it was a trespass upon the rights of the husband that it was held that the wife was incapable of giving a consent to an injury to her husband.. (Rigaut v. Gallisard, 7 Mod. Rep. 81.) In view of the common law, the husband had a property right in the body of his wife and a right to the personal enjoyment of his wife. For an invasion of this right the law permitted him to sue as husband. (McClure’s Executors v. Miller, 11 N. C. [4 Hawks] 133, 140, n.) It was on the ground that an action for criminal conversation was to recover for damages sustained to the person and property of the husband that the Supreme Court of the United States affirmed the courts of this State in refusing to discharge the judgment therein because of the defendant’s discharge in bankruptcy, holding that the cause of action for damage for assault constitutes a willful and malicious injury to the husband’s rights and property within the meaning of the Bankruptcy Act of 1898 (30 U. S. Stat. at Large, 550, § 17, subd. 2). (Tinker v. Colwell, 193 U. S. 473, affg. sub nom. Colwell v. Tinker, 169 N. Y. 531, affg; 65 App. Div. 20.) In a somewhat recent case (1895) the Supreme Court of Minnesota, in sustaining a demurrer to a complaint in criminal conversation, said: “We are quite safe in saying that at common law no such action could have been maintained.. The injured husband alone brought crim. con., and he could sustain the action by simply showing adulterous intercourse. The grounds on which the right to recover was based are well stated in Cooley on Torts, 224, and the principal elements were the disgrace which attached to the plaintiff as the husband of the unfaithful wife, and no such disgrace ever rested upon the wife if there was one, of the guilty defendant, and, of more importance, the danger that a wife’s infidelity might not only impose on her husband the support of children not his own, but, still worse, cast discredit upon the legitimacy of those really begotten [310] by him. Because of these elements, the man was always presumed to be the guilty party. In the eye of the law, the female could not give her consent to the adulterous acts, and, as a result, it was no defense in this form of action that the defendant had been enticed into criminal conversation through the acts and practices of the woman. From this statement as to the grounds or elements constituting this action, it will be seen that the principal ones can not possibly exist or be invoked in a similar action brought by a wife. And what has been said about the unavailability of the defense that the defendant himself was the victim, and not the seducer, is suggestive of what the courts might have to hold to be the rule of pleading, and what they might have #o inquire into, upon the trial of an action of this kind. Would it be held, following the old rule we have mentioned, and for which the reason seems well founded, that it was no defense for the female sued to allege and prove that she was the party seduced, and that the greater wrong and injury had been inflicted upon her, not upon the plaintiff wife? or would the contrary rule prevail? But we need not consider the subject further, for a moment’s reflection will suggest the remarkable results flowing from the adoption of either rule. * * * We find nothing in our statutes in respect to the rights of married women which indicates that the power to proceed in this form of action was intended to be conferred.” (Kroessin v. Keller, 60 Minn. 372, 374, 376.)
Without multiplying citations, it is well settled that at common law the wife had no property right in the person of her husband nor in his earnings. If by negligent or malicious act he suffered injury to his person, or his earning capacity was impaired, she had, and now has, no right of action against the wrongdoer, .although she may have suffered substantial injury in the loss of his ability to support her. Her right was to his affection, society, aid and support, and if any one by enticing him away, or poisoning his mind against her, alienated his affection, it was an actionable wrong which for procedural reasons she could not enforce. On the other hand, the common law recognized in the husband the right to the body of his wife and the exclusive enjoyment of his marital rights and to beget his own children, and against any one who invaded that right he had a right of action for criminal conversation, a right that the wife never had. The question remains, has. she been given that right by virtue of section 57 of the Domestic Relations Law and section 450 of the Code of Civil Procedure?
Under the Married Woman’s Acts of 1860 and 1862 (ubi supra) it was held that for those injuries to the wife for which the husband [311] and wife could sue jointly, she could sue alone, and that the recovery was for the benefit of her personal estate; but for those injuries to her for which the husband had the sole right of action she could not sue, the reason being that those acts did not enlarge the rights of the wife or detract from the rights of the husband. For a direct injury to her person or property, or if she was carrying on any trade or business or performing any work, labor or services on her sole and separate account, she could recover the consequential damages for what she lost in that behalf by reason of the injury. But if she was not engaged in a separate business or employment, the services of the wife in the household in discharge of her domestic duties still belonged to the husband, and in rendering such services she still bears to him the common-law relation, and for the consequential damage for the loss of such services he, and not she, can recover from the wrongdoer. (Filer v. N. Y. C. R. R. Co., 49 N. Y. 47, 56; Brooks v. Schwerin, 54 id. 343, 348.) The husband’s right to his wife’s services was not limited to those performed for him in his house, for when she worked for him upon his farm she was entitled to no pecuniary compensation and his promise to pay her therefor was without consideration (Whitaker v. Whitaker, 52 N. Y. 368, 371), and the statutes did not apply to labor performed by her for him in his household, even if it was of somewhat extraordinary character (Reynolds v. Robinson, 64 N. Y. 589; Coleman v. Burr, 93 id. 17), nor when she works with her husband for another and their joint earnings are used to support the family; if there is no special contract that she is to receive the avails of her labor, they belong to him and he is entitled to receive their value. (Birkbeck v. Ackroyd, 74 N. Y. 356.) Until the passage of chapter 381 of the Laws of 1884, the power of a married woman to make a general contract not relating to labor to be performed on her sole and separate account depended upon the act of 1860, and her having a separate estate or engagement in a separate business was essential to their validity. (Linderman v. Farquharson, 101 N. Y. 434.) But this act did not apply to any contract between herself and husband except in relation to her separate estate. (Noel v. Kinney, 106 N. Y. 74, 78.) By chapter 537 of the Laws of 1887 she was authorized to convey lands directly to and accept conveyance from her husband without the intervention of a third person. In Fitzgerald v. Quann (109 N. Y. 441, 445), an action brought against husband and wife to recover damages for slanderous words spoken by the wife, it was claimed that the common-law liability of a husband for the torts of his wife had been abrogated by the provisions of chapter 172 of the Laws of 1862, under which a married woman [312] could be sued as if she were single and judgment enforced against her separate estate. It was held that the common-law liability of the husband was unaffected by the statute which merely related to the status of a married woman in court, and the cases enumerated therein in which she could be so sued did not include a case of a tort committed by her during coverture for which an action is brought during coverture. The court therein used this language, which is particularly applicable to the instant case: “ The counsel for the defendant in his argument before us, conceded the rule to be well established and almost universally acted on, that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires. However much modern judges might sometimes be inclined to doubt the beneficial results to be derived from an always strict adherence to the rule, grounded upon some possible doubts of the high order of excellence in all cases of the common law, or of its being without exception the perfection of human reasoning in any other than a very narrow, technical and one-sided way, yet the rule itself is too securely and firmly established and grounded in our jurisprudence to be altered other than by legislative interference. This court acted upon such rule in the late case of Bertles v. Nunan (92 N. Y. 152), and because there was no statute which plainly altered it, the common law was held in that case to remain the law in this State in regard to the conveyance of real estate to a husband and wife jointly, and that upon the death of either the survivor took the whole estate.” In 1890 an act was passed exempting the husband from liability for his wife’s torts (Laws of 1890, chap. 51, § 2), which was in effect incorporated in section 27 of the Domestic Relations Law of 1896, and the latter reincorporated in section 57 of the present Domestic Relations Law.
Mr. Justice Merrell is of the opinion that section 57 of the Domestic Relations Law, read in connection with section 37-a of the General Construction Law (as added by Laws of 1920, chap. 917, formerly Code Civ. Proc. § 3343, subd. 9), not only removes every obstacle which existed at common law preventing the wife from seeking redress for personal injury suffered by her,- but by defining personal injuries to include criminal conversation has created a right of action in her to sue another woman for criminal conversation with her husband. In Colwell v. Tinker (169 N. Y. 531, 535, 536) the court said: “ Section 3343 of the Code, subdivision 9, defines a ‘ personal injury ’ to be, among other things, criminal conversation. As this is a mere legislative definition of a personal injury, for the guidance of' the courts in [313] this State, it may be regarded for the purposes of this discussion as of no binding force in the determination of the Federal question now presented. It is very clear upon principle and authority that criminal conversation is a wilful and malicious injury to both the person and the property of the husband. * * * On principle, criminal conversation with the wife is a personal injury to the husband, without regard to the statutory declarations to that effect in this State. While loss of service is usually pleaded in this form of action, yet its real foundation is the personal injury inflicted upon the husband. The offense charged is a most grievous wrong against social order and society; it strikes at the foundations of the home and the legitimacy of offspring.”
As we have hereinbefore shown, when this case was taken to the United States Supreme Court by writ of error, that court (193 U. S. 473), upon common-law grounds, found that “ an assault of this nature may properly be described as an injury to the personal rights and property of the husband, which is both malicious and willful.” .
In my opinion the inclusion, in the definition of “ personal injury,” of “ criminal conversation,” a well-known personal injury to a husband and not to the wife, gives her no more right of action than does the inclusion therein of “ assault, battery, false imprisonment ” give a right of action to the wife when the object of the assault, battery or false imprisonment was the husband, on the ground that thereby the wife’s support and maintenance had been diminished. The object of these definitions is not to create new actions but merely to classify and define those that already exist. Nor does the phrase “ injury arising out of the marital relation,” in section 57 of the Domestic Relations Law, create a new action, but merely removes the disability of coverture that existed before to recover for such wrongs. For the alienation of affection; for breach of a covenant in a marriage settlement, which could only be enforced by a decree of specific performance in equity; for breach of an agreement for separate maintenance and support, which could only be enforced when entered into by a third party and by that party enforced; and where a wife has furnished, from her separate estate, money to buy necessaries for herself and children, especially where he has deserted them and has been adjudged liable to her for a stated sum for support (De Brauwere v. De Brauwere, 144 App. Div. 521; affd., 203 N. Y. 460), these being certain existing rights of action to which the statute applies, it will be presumed that the legislation was intended to apply thereto, and not to create new causes of action unless the intention to do so appears clearly from the language used.
From this review of the authorities, in my opinion, it is clearly [314] demonstrated that, except as expressly changed by the clear wording of a statute, the relations of husband and wife, the rights, duties and obligations of the parties to the marriage contract, are imposed, governed and limited by the principles of the common law; that the courts will not by judicial legislation create new rights, duties or causes of action, in derogation of the common law, but will leave to the law-making branch of the government the exercise of that power.
In passing we might observe that the action for criminal conversation has been abolished in England by The Matrimonial Causes Act, 1857. (20 & 21 Viet. chap. 85, § 59.) It is an action that was never favored by the courts and instead of extending it to cover new causes it might be wise to abolish the action.
The denial of this particular right of action does not leave an injured wife remediless. She can obtain a divorce with provision for her support and maintenance; and if her husband is enticed away from her and his affections alienated, she can recover damages which would be increased by the adulterous acts.
The judgment and order should be reversed, with costs, the verdict set aside, and judgment directed for the defendant dismissing the complaint upon the merits, with costs to appellant.
Clarke, P. J., Dowling and Smith, JJ., concur; Merrell, J., dissents.