App. Div.] FOURTH DEPARTMENT, NOVEMBER TERM, 1901. could not be sustained on the ground of the prejudice of the justice. In the case of People ex rel. Shannon v. Magee (55 App. Div. 195), which was a proceeding to remove the relator from the office of janitor, the court said: "At the threshold of the argument the jurisdiction of the police commissioner is challenged by reason of his prejudice. * * * By the statute the police commissioner was the only tribunal authorized to try charges against the relator. Whatever may be his prejudice, therefore, his jurisdiction is undoubted, for otherwise the relator could not be tried or removed, however flagrant his offenses." * The same question was again considered in People ex rel. Miller v. Elmendorf (57 App. Div. 340) and the same doctrine reiterated, the court saying: "The mayor was the legally constituted tribunal to hear and determine the charges preferred against the relator. In People ex rel. Shannon v. Magee (supra) it was distinctly held by this court that in such a case prejudice does not deprive the tribunal of jurisdiction, and the existence of prejudice is not a fact competent for consideration in the review of a determination. On this question that authority must be regarded as decisive." The case of People ex rel. Pond v. Trustees, (4 App. Div. 399), we think does not sustain respondents' contention. In that case it is pointed out that it was not necessary that the trustee who preferred the charges against the relator should be a member of the court which tried the charges; that a full investigation and determination of the matter could have been had without his acting as a member of the court, and, therefore, that the law of necessity did not apply. The conclusion is reached that the defendant, as mayor of the city of Utica, had jurisdiction to hear, try and determine the charges of official misconduct against the relators, notwithstanding that such charges were preferred by him as such mayor, and that the Supreme Court was without jurisdiction to issue a writ of prohibition in the premises. It may also be said that the action of the mayor in investigating and determining as to the truth of the charges preferred against the relators could be reviewed upon certiorari. and for that reason the writs were improperly granted. FOURTH DEPARTMENT, NOVEMBER TERM, 1901. [Vol. 66. In People ex rel. Mayor v. Nichols (79 N. Y. 591) the court said: It is "well settled that where a remedy by appeal or otherwise may be had to correct an error of law or practice, the writ (of prohibition) will not lie. * * In such a case the inferior court or the tribunal of limited jurisdiction can be set right by appeal only." In People ex rel. Deal v. Williams (supra) the court said: "In view of the fact that the inatter is not triable before any other officer, and that the relator has the right of review, the writ cannot, I think, be sustained on the ground of * * prejudice." * The conclusion is reached that in the two proceedings in which Frank L. Jones and John E. Morgan are relators respectively, the orders appealed from should be reversed, with ten dollars costs and disbursements to the appellant in each case. In the proceeding in which the respondent William E. Lewis is the relator, in addition to the facts which appear in the other cases, it appears that on the 1st day of June, 1901, when the final hearing in said proceeding was had and before the order therein had been made, said Lewis filed with the court, all parties to the proceedings being present, his affidavit in which he stated that his term of office as police and fire commissioner of the city of Utica expired on the last day of April, 1901, at which time he ceased to be a police and fire commissioner, and that his successor had entered upon the discharge of his duties on the 1st day of May, 1901, and was then engaged in the discharge of his duties as such police and fire commissioner. It also appeared by said affidavit that the appellant threatened to try the relator, William E. Lewis, upon the charges preferred against him, notwithstanding that his term of office had expired a month before that time, and the facts stated in such affidavit were in no manner controverted by the appellant. We are of the opinion that at the time the writ of prohibition was granted in the proceeding in which William E. Lewis is relator, his term of office as police and fire commissioner having expired and his successor having duly entered upon the discharge of his duties as such commissioner, the defendant had no jurisdiction to hear, try and determine the charges which had been preferred against the relator in that proceeding, and that, therefore, the writ of prohibition in that case was properly granted for that reason, and App. Div.] FOURTH DEPARTMENT, NOVEMBER TERM, 1901. solely upon that ground the order appealed from in that proceeding should be affirmed, with costs. All concurred, except RUMSEY, J., not sitting. The orders appealed from in the first two above-entitled proceedings are reversed, with ten dollars costs and disbursements in each proceeding. The orders appealed from in the last above-entitled proceeding are affirmed, with ten dollars costs and disbursements. WARREN M. BILLINGS, Respondent, v. FRANK ALBRIGHT, Appellant. Criminal conversation—what statements made by the plaintiff's wife to him are competent what statements made by her to third parties are not competent — exidence as to plaintiff's adultery, his treatment of his wife, etc. — proof required of the plaintiff the basis of damages. In an action for criminal conversation, brought by a husband, oral declarations or statements made by his wife to him, or in his presence, in the absence of the defendant, before the commencement of the action, indicating the state of his wife's feelings toward him, are, in the absence of proof of collusion, competent solely for the purpose of proving the state of such feelings and as bearing upon the question of damages, and such declarations or statements may be testified to by the plaintiff or by any other person who may have heard them. Declarations or statements made by the wife to third parties, in the absence of both the plaintiff and the defendant, which were nct made in explanation of, or to characterize any act which is part of the res gesta, are not competent for any purpose. The defendant may, if he alleges such facts in his answer as a partial defense and in mitigation of damages, prove the commission of adultery by the plaintiff, the relation which he sustained towards his wife, whether affectionate or otherwise; that his treatment of her was cruel; that his habits were bad, and any and all facts which tend to show the character of the plaintiff before the commencement of the action. Semble, that it is only necessary for the plaintiff to prove his marriage and the criminal conversation, and that the latter took place without his consent, in order to entitle him to nominal damages, but that the gist of the action and the basis for substantial damages is his loss of consortium. ADAMS, P. J., dissented on the ground that the errors committed by the trial judge were harmless. FOURTH DEPARTMENT, NOVEMBER TERM, 1901. [Vol. 66. APPEAL by the defendant, Frank Albright, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of January, 1901, upon the verdict of a jury for $6,000, and also from an order entered in said clerk's office on the 7th day of February, 1901, denying the defendant's motion for a new trial made upon the minutes. The action was commenced on the 6th day of July, 1900, to recover damages alleged to have been sustained by the plaintiff because of the alienation of his wife's affections caused by the adulterous intercourse had with her by the defendant. J. W. Barrett, for the appellant. Clarence W. McKay, for the respondent. MCLENNAN, J.: The plaintiff in his complaint alleges, in substance, that he was married to his wife on or about the 14th day of September, 1881, in the town of Webster in this State; that the defendant, willfully intending to injure the plaintiff and deprive him of the comfort, society, aid and assistance of his said wife, on the 14th day of September, 1895, and on divers other days and times after that day and within two years of and before the commencement of this action, committed adultery with her, and all while she was living with the plaintiff as his wife; that by reason thereof her affection for the plaintiff was wholly and entirely alienated and destroyed, and on the 1st day of May, 1899, she ceased to live or cohabit with the plaintiff. The defendant by his answer admits the marriage and denies all the other allegations of the complaint, and as a partial defense alleges in substance that the plaintiff was addicted to the excessive use of intoxicating liquors and morphine, and was subject to halucinations and delusions by reason thereof; that he had treated his wife in an unkind, harsh and tyrannical manner; used personal violence towards her; charged her with being unchaste and intimate with other men, and that solely in consequence of such cruel and inhuman treatment she separated and lived apart from him, and App. Div.] FOURTH DEPARTMENT, NOVEMBER TERM, 1901. withdrew from him her love and affection, and not because of any act done by the defendant. The first point made by appellant's counsel is that the verdict is not supported by or at least is against the weight of the evidence, and the first fifty odd pages of his brief is devoted to a discussion of that proposition. We think it only necessary to say that the evidence of the first two witnesses called by the plaintiff who, so far as appears, were reputable people, if believed, was sufficient to justify the jury in reaching the conclusion which it did. They both testified that about the 14th day of September, 1895, the defendant was at their house in Seneca Falls with the plaintiff's wife; that she was introduced to them by the defendant as his wife and that she and the defendant occupied the same room, in which there was but one bed, for two successive nights. We deem it unnecessary to refer in detail to the great mass of evidence bearing upon this issue, but after a careful examination of it all, and after giving due consideration to the suggestions made by appellant's counsel in respect to it, we are impelled to the conclusion that it was of such a character as to justify the jury in finding that the defendant had committed adultery with the plaintiff's wife prior to the commencement of this action, and within the times specified in the complaint. It is also urged by appellant's counsel that the verdict of the jury, $6,000, was excessive, and for that reason that the motion for a new trial should have been granted. After an examination of all the evidence relating to that question, and considering all the circumstances, we are of the opinion that this court would not be justified in declaring that the damages as fixed by the jury were excessive, having in mind the rules which have been laid down as applicable to cases of this kind. (8 Am. & Eng. Ency. of Law [2d ed.], 267, and cases cited; Smith v. Masten, 15 Wend. 270.) The learned counsel for the appellant calls attention to a large number of exceptions taken to the rulings of the learned trial court, which he contends present such error as to require a reversal of the judgment. We are of the opinion that only three, or at least only three classes, of such exceptions merit attention: First, were the APP. DIV.-VOL. LXVI. 16 |