Purdy v. Robinson (133 A.D. 155, 1909)

Jenks, J. :

The first cause óf action is alienation of a wife’s affections, and the second cause criminal conversation. The action was begun on May 2, 1907. The plaintiff has succeeded iii a demurrer to the separate defense as insufficient in law; That defense is that, on or about June 14, 1906, the wife- began her action for an absolute divorce for adultery, wherein the issues were tried, with the result of an interlocutory judgment in her favor on October 22,1906, arid a final judgment accordingly on January 28,1907. And the defendant asks to refer on the trial of this action to ■ the said judgment, interlocutory judgment, referee’s report and complaint. ■

A husband’s cause of action for criminal conversation should not be barred by the plea of the adulterer that after the act of criminal-conversation the husband had forfeited or destroyed his conjugal-rights. (See Michael v. Dunkle, 84 Ind. 544; Wood v. Mathews, 47 Iowa, 409, citing as cases maintained Dickerman v. Graves, 6 Cush. 308; Ratcliff v. Wales, 1 Hill, 63.) . It was decided in England, and followed in Pennsylvania, that when the husband had relinquished consortium by his assent to living apart or separation, his action for criminal conversation had thereafter would not lie. (Weedon v. Timbrell, 5 Term Rep. [Durn. & E.] 357; Fry v. Derstler, 2 Yeates, 278.) But Weedon v. Timbrell (supra) wras not without criticism. (See Chambers v. Caulfield, 6 East, 244, Lord Ellenborough, Ch. J., 247.) And it is said' in Cross v. Grant (62 N. H. 685) that the "court found that it had been followed in but.one American case,-and that-in Canada. The - court also comments: