Lacombe, J.
It is apparent from the verdict that the jury discredited the testimony both of the defendant and of the plaintiff’s wife. In discussing the question therefore whether the verdict is, as defendant claims, against the weight of evidence, such testimony will be entirely disregarded by the court.
When, however, the jury discredited the defendant’s testimony, they did not thereby put the case m the same condition as if the defendant had not testified at all; still less did they thereby alter the issues raised by the pleadings. The defendant’s side of the story was not practically abandoned because of any failure on his part to sustain it with his oath ; and under the pleadings the burden rested upon the plaintiff to show affirmatively by competent and sufficient legal proof that between April and October, 1887, his wife committed adultery with the defendant. If the proof were insufficient to establish that charge, the jury were not at liberty to supply any defects in such proof by inferences from outside ; nor were they warranted in assuming that because they decided the defendant’s narrative to be false, they were entitled to jump to the conclusion that the converse of such narrative must be true, without any further examination of the testimony.
In actions of this character, where the act of adultery is not shown by direct proof, the plaintiff must show: first, a disposition to illicit intercourse ón the part of the wife; second, a disposition to illicit intercourse with the wife on the part of the defendant; and third, opportunity to gratify such mutual disposition. It must be shown that a criminal attachment subsisted between the wife and the defendant. [116]*116and that they had an opportunity to gratify their unlawful passion (Pollock v. Pollock, 71 N. Y. 137). The jury were so charged, and in plain and unmistakable terms were-told that while they might find these three essentials as inferences from facts, they must, in drawing such inferences, use only the facts in proof.
The evidence, if any, as to the first of these essentials need not now be discussed ; this motion will be considered solely in the light of such evidence as affects the defendant.
The circumstances upon which plaintiff especially relied in support of the inference that defendant was disposed towards improper intercourse with the wife was the discovery of the two letters, Exhibits A and 0. The plaintiff claimed that these were written by defendant, and that therefore the jury might take them into consideration when drawing inferences as to defendant’s disposition. The letters were unsigned, were not shown to have ever been in-defendant’s possession, and Avere sought to be connected with him only by proof as to handwriting. Not counting the defendant (who denied writing them, but whose testimony as above indicated the jury did not credit) there Avere three witnesses and three only examined on this point. De Baum, who had known defendant and had business transactions with him for over twenty-five years and was quite familiar with his handwriting, testified positively to the opinion that A and 0 were not in defendant’s handwriting. Lydecker, who had known him for thirty years, had repeated business transactions with him, and who was in no way interested in the result of this suit, also testified to the same effect. In opposition to this testimony there appeared only the plaintiff himself. His only knoAvledge of defendant’s handwriting Avas derived from having once seen him filling an insurance policy, from having once received an itemized bill from him, •and from having several times seen him in the country grocery store which he kept at Ramsays, N. J., make entries in his books. Enlightened by such measure of experience, he expressed the opinion that Exhibits A and 0 were [117]*117written by the defendant. And, though he (as well as the ■defendant) had lived at Bamsay’s all his life, he did not call a single witness from the many persons in that place who must be entirely familiar with defendant’s handwriting.
If this action were to recover a liquidated amount upon a written obligation for the payment of money the authenticity of which was in dispute, it is incredible that a single •one of these twelve jurymen, who presented the outward seeming of intelligent business men, would have found such proof sufficient to establish the genuineness of the document •sued upon. That they reached a different conclusion as to the documents in this case (and their verdict seems to indicate that they did so) resulted probably from an acute attack of that species of mental hysteria to "which jurymen in sexual ■cases are so peculiarly liable.
Besides these letters, the only circumstances relied on by the plaintiff as sustaining the inference that defendant had a disposition towards illicit intercourse with the wife are these. It appeared that defendant made repeated visits to the house of plaintiff while the latter was absent in Hew York. It also appeared, however, that he always called there to deliver butter or groceries in the ordinary transaction of his business. Mrs. Tenure, the only witness to these visits, says that he came on business to deliver goods, and •did not stay more than ten minutes at the longest. It was •shown that on one occasion he brought to the house a package of groceries under the string of which was a letter, but it also appeared that defendant was postmaster and occasionally left his customers’ mail with their groceries. The witness, Mrs. Tenure, also testified that the plaintiff’s little boy came out of his mother’s room and into witness’ room, when defendant came, which was only on Saturday mornings, but she also admitted that in the winter time the boy came into her room nearly every day, and that in the summer time he was always out of doors, and it was with the period from April to October only that the complaint is concerned. The same witness also testified that on one occasion defend[118]*118ant stopped in front of the house in a sleigh, and she heard him say to plaintiff’s wife who had gone to the gate, in a low voice, not exactly a whisper, hut a low voice, “ We are watched but the same witness also admits that she, the observer and reporter of this conversation, was at the time at the window of her own room; a distance, according to her own statement, of from 100 to 150 feet. Except for the letters there is absolutely nothing else on this branch of the case. Such evidence standing alone is altogether too feeble to support the inference which the jury seem to have drawn from it, especially in view of the fact that the offense charged against the defendant is a. crime—an offense involving moral turpitude. In such cases the rule is well settled that when the evidence'is as capable of an interpretation which makes it consistent with the innocence of the accused party as with one consistent with his guilt, the meaning must be ascribed to it which accords with his innocence rather than that which imputes to him a criminal intent (Morris v. Talcott, 96 N. Y. 100 ; Jaeger v. Kelly, 52 Id. 274; Pollock v. Pollock, 71 Id. 107; Crock v. Rindskof, et al, 105 Id. 476).
The only remaining evidence of the case is that tending to show opportunity. The plaintiff testified that, suspecting his wife’s unfaithfulness, he followed her one morning, accompanied by a young man—a stranger whom he hired for the occasion. That he saw her enter the Cosmopolitan Hotel by the ladies’ entrance.
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Lacombe, J.
It is apparent from the verdict that the jury discredited the testimony both of the defendant and of the plaintiff’s wife. In discussing the question therefore whether the verdict is, as defendant claims, against the weight of evidence, such testimony will be entirely disregarded by the court.
When, however, the jury discredited the defendant’s testimony, they did not thereby put the case m the same condition as if the defendant had not testified at all; still less did they thereby alter the issues raised by the pleadings. The defendant’s side of the story was not practically abandoned because of any failure on his part to sustain it with his oath ; and under the pleadings the burden rested upon the plaintiff to show affirmatively by competent and sufficient legal proof that between April and October, 1887, his wife committed adultery with the defendant. If the proof were insufficient to establish that charge, the jury were not at liberty to supply any defects in such proof by inferences from outside ; nor were they warranted in assuming that because they decided the defendant’s narrative to be false, they were entitled to jump to the conclusion that the converse of such narrative must be true, without any further examination of the testimony.
In actions of this character, where the act of adultery is not shown by direct proof, the plaintiff must show: first, a disposition to illicit intercourse ón the part of the wife; second, a disposition to illicit intercourse with the wife on the part of the defendant; and third, opportunity to gratify such mutual disposition. It must be shown that a criminal attachment subsisted between the wife and the defendant. [116]*116and that they had an opportunity to gratify their unlawful passion (Pollock v. Pollock, 71 N. Y. 137). The jury were so charged, and in plain and unmistakable terms were-told that while they might find these three essentials as inferences from facts, they must, in drawing such inferences, use only the facts in proof.
The evidence, if any, as to the first of these essentials need not now be discussed ; this motion will be considered solely in the light of such evidence as affects the defendant.
The circumstances upon which plaintiff especially relied in support of the inference that defendant was disposed towards improper intercourse with the wife was the discovery of the two letters, Exhibits A and 0. The plaintiff claimed that these were written by defendant, and that therefore the jury might take them into consideration when drawing inferences as to defendant’s disposition. The letters were unsigned, were not shown to have ever been in-defendant’s possession, and Avere sought to be connected with him only by proof as to handwriting. Not counting the defendant (who denied writing them, but whose testimony as above indicated the jury did not credit) there Avere three witnesses and three only examined on this point. De Baum, who had known defendant and had business transactions with him for over twenty-five years and was quite familiar with his handwriting, testified positively to the opinion that A and 0 were not in defendant’s handwriting. Lydecker, who had known him for thirty years, had repeated business transactions with him, and who was in no way interested in the result of this suit, also testified to the same effect. In opposition to this testimony there appeared only the plaintiff himself. His only knoAvledge of defendant’s handwriting Avas derived from having once seen him filling an insurance policy, from having once received an itemized bill from him, •and from having several times seen him in the country grocery store which he kept at Ramsays, N. J., make entries in his books. Enlightened by such measure of experience, he expressed the opinion that Exhibits A and 0 were [117]*117written by the defendant. And, though he (as well as the ■defendant) had lived at Bamsay’s all his life, he did not call a single witness from the many persons in that place who must be entirely familiar with defendant’s handwriting.
If this action were to recover a liquidated amount upon a written obligation for the payment of money the authenticity of which was in dispute, it is incredible that a single •one of these twelve jurymen, who presented the outward seeming of intelligent business men, would have found such proof sufficient to establish the genuineness of the document •sued upon. That they reached a different conclusion as to the documents in this case (and their verdict seems to indicate that they did so) resulted probably from an acute attack of that species of mental hysteria to "which jurymen in sexual ■cases are so peculiarly liable.
Besides these letters, the only circumstances relied on by the plaintiff as sustaining the inference that defendant had a disposition towards illicit intercourse with the wife are these. It appeared that defendant made repeated visits to the house of plaintiff while the latter was absent in Hew York. It also appeared, however, that he always called there to deliver butter or groceries in the ordinary transaction of his business. Mrs. Tenure, the only witness to these visits, says that he came on business to deliver goods, and •did not stay more than ten minutes at the longest. It was •shown that on one occasion he brought to the house a package of groceries under the string of which was a letter, but it also appeared that defendant was postmaster and occasionally left his customers’ mail with their groceries. The witness, Mrs. Tenure, also testified that the plaintiff’s little boy came out of his mother’s room and into witness’ room, when defendant came, which was only on Saturday mornings, but she also admitted that in the winter time the boy came into her room nearly every day, and that in the summer time he was always out of doors, and it was with the period from April to October only that the complaint is concerned. The same witness also testified that on one occasion defend[118]*118ant stopped in front of the house in a sleigh, and she heard him say to plaintiff’s wife who had gone to the gate, in a low voice, not exactly a whisper, hut a low voice, “ We are watched but the same witness also admits that she, the observer and reporter of this conversation, was at the time at the window of her own room; a distance, according to her own statement, of from 100 to 150 feet. Except for the letters there is absolutely nothing else on this branch of the case. Such evidence standing alone is altogether too feeble to support the inference which the jury seem to have drawn from it, especially in view of the fact that the offense charged against the defendant is a. crime—an offense involving moral turpitude. In such cases the rule is well settled that when the evidence'is as capable of an interpretation which makes it consistent with the innocence of the accused party as with one consistent with his guilt, the meaning must be ascribed to it which accords with his innocence rather than that which imputes to him a criminal intent (Morris v. Talcott, 96 N. Y. 100 ; Jaeger v. Kelly, 52 Id. 274; Pollock v. Pollock, 71 Id. 107; Crock v. Rindskof, et al, 105 Id. 476).
The only remaining evidence of the case is that tending to show opportunity. The plaintiff testified that, suspecting his wife’s unfaithfulness, he followed her one morning, accompanied by a young man—a stranger whom he hired for the occasion. That he saw her enter the Cosmopolitan Hotel by the ladies’ entrance. Thereupon he entered the-hotel himself by the main entrance into the restaurant; thence went to the clerk’s desk, looked over the register to-see if he could .trace any names, stated his case to the clerk who referred him to the proprietor; found the latter and with his permission, accompanied by the clerk, went upstairs into the hallway outside of the room 3STo. 59. The door of Ho. 59 was shut, but through the fanlight over the top he heard voices within, one of these voices being that of his wife. He understood what was said, but did not state it., not being asked by either side so to do. [119]*119He then left the hallway, returning after a considerable time with a detective and the young man. They took post in a room adjoining, and after another long interval entered room 59, which they found untenanted, the bedclothes tumbled, a champagne bottle and two wine glasses standing on the table and his wife’s parasol in the fireplace On his way home that evening he met his wife on the train. He did not see the defendant that day, except perhaps at Barn-say’s in the evening.
With regard to this narrative two suggestions are pertinent. In the first place it is testified to only by the plaintiff. Himself an interested witness, he does not seek t0 corroborate his statements by the evidence of the young man, the clerk, the register, the proprietor, or the detective, nor does he attempt to account for the absence of any of them (except the boy, infra). In Clifton v. United States, 4 How. U. S. 242, it is said that “ If the weaker and less satisfactory evidence is given and relied on in support of a fact, when it is apparent to the court and jury that proof of a more direct and explicit character was within the power of the party, the same action which rejects the secondary evidence will awaken distrust and suspicion of the weaker and less satisfactory; and it may well be presumed that if the more perfect exposition had been given, it would have laid open deficiencies and objections, which the more obscure and uncertain testimony was intended to conceal.”
Plaintiff’s failure to avail of any corroborative proof, when such, for all that appears, was readily producible, requires us to examine this part of his narrative with more than ordinary caution..
In the second place, it will be noted that so far as above set forth plaintiff’s statement of occurrences at the Cosmopolitan Hotel does not implicate the defendant. What is it that connects him therewith ? The additional statement of the plaintiff that he recognized one of the voices which hie heard through the fanlight as that of George I. Ryerson. [120]*120Though he knew defendant well, he was not particularly intimate with him, had no such acquaintanceship with the tones of his voice as he may be assumed to have had with those of his wife’s. Beyond this statement of plaintiff’s opinion, however, as to the identity of the voice of an unseen speaker there is not a scintilla of evidence connecting defendant with the transactions at the Cosmopolitan Hotel on the 11th of August. Upon this point, as in regard to the letters, plaintiff is the sole witness. To sustain a verdict in such an action as this solely upon the evidence of the plaintiff—who testifies not to facts but to opinions, and to . opinions formed at a time when his mind was excited, and his judgment prejudiced by the passions of jealousy, shame and anger, would be contrary alike to reason and authority.
This verdict is not sustained by the evidence and should be set aside, especially where, as in this case, it has perhaps been induced by matters not in proof. On the third day of the trial, plaintiff, who had endeavored unsuccessfully to subpoena defendant’s wife the evening before, called the marshal to the stand and undertook to prove by him before the jury what efforts he had made to find her. This was promptly excluded. Again at the close of defendant’s case plaintiff moved on affidavits for leave to re-open his case and to examine a new witness, the young man who accompanied him to the Cosmopolitan Hotel, and whom he had not called in chief. This was refused on the ground that it appeared by the plaintiff’s own statements and by the city directories that he might easily have procured the witness’ attendance by the first day of the trial. So, too, plaintiff was, on the objection of defendant’s counsel, refused leave to re-open his case by recalling witnesses and examining them as to new matter not developed on cross-examination. The results of all these applications were before the jury, and no doubt led them to suppose that testimony damaging to the defendant was thus kept out of the case by his objection. Beyond the statement that they “ might not draw inference without actual facts to support them” the jury were not specially [121]*121•cautioned against giving any weight to supposed testimony not before them, the court assuming that they possessed a higher degree of intelligence than they seem to have displayed, and this extraordinary verdict may find its possible explanation in a prejudice excited by defendant’s insistance on a strict "application of the rules of proof.
By whatever cause it was induced, however, it is clearly not sustained by the evidence, and should be set aside.
Allusion was made upon the argument to the denial of defendant’s motion to take the case from the jury upon the whole proof. Counsel refer to a rule familiar to state practice, viz : that where the court \yould set aside a verdict if against the defendant, it should non-suit when asked so to do. A non-suit in a state court and a direction of a verdict for defendant in a Federal court, however, do not leave the plaintiff in the same position. In the one case he can pay up his costs, get together more evidence and sue again, finding in the non-suit no bar to his recovery. To such new action, however, the judgment entered upon direction of a verdict in a federal court would be a bar (Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121; Oscanyan v. Winchester R. Arms Co., 103 Id. 261). In denying the defendant’s motion to direct a verdict in his favor it was stated that such denial was induced by the consideration that the defendant was not thereby irreparably prejudiced, the motion for a new trial securing him against any wrong from a verdict founded on insufficient proof. At the same time it appeared to the court that in view of the suggestion of additional proof made on the motion to re-open the case it would be unfair to the plaintiff to prevent him from going to a jury either in this case or in any other. He might have been irreparably injured by the direction of a verdict.
Let the verdict be set aside.