Curry v. Wiborn 57 N.Y.S. 1136

PER CURIAM.

Affirmed.

FOLLETT, J.

(dissenting). This action was

begun September 4, 1894, to recover damages for an alleged assault upon the plaintiff by the defendants. I am unable to concur in the recommendation for affirmance of this judgment, .for the reason that all of the letters written by the plaintiff should have been received in evidence, as they show beyond question that the plaintiff, instead of being grievously injured and in poor health and spirits, was during the year 1894 constantly seeking the society of her lover, and they contain no intimation that she was suffering from physical injuries. It is alleged that the assault was committed April 11, 1894. The plaintiff testified that she was 26 years of age July 27, 1897, and that since the alleged assault had been employed by various persons, but was unable to earn her accustomed wages, by reason of her injuries, the effect of which, she testified, continued to the date of .the trial. She also testified that January 30, 1897, she gave birth to an illegitimate child, and was then living with a man who was not her husband. April 15, 1894, four days after the alleged assault, she wrote a. letter to her lover, in which she made no reference to having been injured by the defendants. August 12, 1894, she wrote her a lover a letter, from which it is apparent that she was an abandoned woman, and was seeking and enjoying the society of men, and made no complaint that she was suffering from physical injuries. These letters and others of like character were continued until November 7, 1894, and in none of them is there any complaint that she was suffering from injuries, but, on the contrary, the whole tenor and effect of them are that she was in good health. The court erred in rejecting these letters, because they were relevant and important upon the question of damages, both actual and punitive. The letter of November 7, 1894, and the earlier letters, show that during that year the plaintiff was engaged in activities which were entirely inconsistent with her testimony that during that time she was suffering pain from physical injuries. These letters were competent, as bearing upon her credibility, and upon the question of the seriousness of *1137her alleged physical injuries. The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.