CAMPBELL against CARTER

CAMPBELL against CARTER. New York Common Pleas ; Special Term, January, 1869. Cause of Aotioe.—Wroegful Harbobieg of Wife. An action does not lie against the father of a wife, for harboring her against the will of her husband, unless there is clear proof that the defendant acted maliciously in so doing. Motion for an injunction. This action was brought by George Campbell, a husband, against George W. Carter, his father-in-law; the plaintiff averring in the complaint his marriage to the defendant’s daughter and their happy living together until the grievances alleged, and the birth of a son, who at the time of suit brought was five months of age. He further alleged that he had provided for his wife and child a suitable home and all necessaries for their comfort and support; that while the plaintiff and his wife and son were boarding with the defendant, the defendant prohibited the plaintiff from entering his house, and thenceforth unlawfully harbored and kept the plaintiff’s wife, and son in his house, depriving the plaintiff of their persons, society and comfort, and preventing him from visiting them or tSiting them away from the defendant’s residence. The plaintiff also alleged that the defendant, by false, scandalous, and defamatory remarks, to the plaintiff’s wife, concerning the plaintiff, had alienated her affections. Wherefore the plaintiff prayed that the defendant be required to surrender and deliver up his wife and son, that he be enjoined from further harboring them, and from in any manner preventing the plaintiff from enjoying their society, and for damages and for other relief. The plaintiff, upon affidavit, obtained an order to show cause why the defendant should not be enjoined from further harboring the plaintiff’s wife and child, and from preventing him from visiting them, and why he should not be required to surrender and deliver them up to him. The affidavit in support of the motion alleged that the plaintiff had applied to the defendant to see his wife and child, which the defendant had refused, stating that he could never see them ; and alleged that he, the plaintiff, verily believed that his wife would be willing to live with him, except for the influence that the defendant exerted upon her. The allegations of the affidavit as to the request of the plaintiff to see his family, and the defendant’s refusal, were corroborated by the affidavit of a witness. In opposition to the motion, the defendant’s affidavit was presented, in which he denied that he had ever forbidden the plaintiff to see his wife and child,, or restrained her from living with plaintiff, but had simply requested the plaintiff to treat his wife and child kindly, and that he had advised the wife to live with her husband if she could. The affidavit of the wife was also produced, stating that the plaintiff, her husband, had treated her in an offensive and abusive manner, making it unsafe for her to cohabit with him, and that she remained with her parents voluntarily, and without restraint; that her husband left her voluntarily, and had not since contributed to her support-. * The defendant’s answer, admitting the marriage and "birth of the son, averred that the wife and her child remained with the defendant at her own free will and voluntary request, and that the defendant was no way responsible for her conduct in refusing to live with the plaintiff. Adolph Lemnger, for the motion. Phillip F. Smith, opposed. [MAJORITY — Brady, J.] Brady, J. In Hutcheson v. Peck (5 Johns., 196), it was said "by Speetoee, J., it is believed that the books furnished no precedent for this kind of action, and further, that its novelty was no argument against its being maintained, but the right to recover was by the prevailing opinions of the court made dependent upon the defendant’s malicious or corrupt conduct. It was the rule prior to that case, and is now, that the mere harboring of a married woman "by a stranger from motives of humanity would not give the husband a right of action, and as was also said in the case referred to, the same acts which in a stranger might be deemed to proceed from improper and unjustifiable motives ought to be considered as proceeding from parental affection, when committed by the father who is bound by the laws of nature to shelter and protect his child. The good sense of these words cannot be gainsayed, and no action of this kind should be countenanced in the absence of proof which leads to no other conclusion than that the defendant has acted maliciously. The evidence submitted on this motion justifies no such conclusion. The plaintiff’s wife alleges improper conduct on the part of the plaintiff, which she regards as sufficient to warrant personal apprehension, and the defendant denies any attempt to improperly influence her. This motion cannot be entertained, therefore, and must be denied. No relief suggested would be authorized upon the facts disclosed, but if a meeting of the plaintiff and his wife can be promoted by the defendant with a view to their future unitm. and welfare, it would be commendable in him to employ his influence thereto. The meeting could be readily arranged so that the plaintiff’s wife would be perfectly safe and free from the influence which the plaintiff seems to think is unjustly exercised against his marital rights. This court, acting as a court of conciliation, will lend its support to accomplish a reunion between the plaintiff and his wife, if it can be used for that purpose, but cannot enforce in this case by order such a result, directly or indirectly. °