¶1The evidence upon the plaintiff’s part tended to show that the defendant had by persuasion caused his wife to leave her home and meet him at a house of assignation in Elmira, and if any cause of action was proved it was one for criminal conversation. It was a fair question of fact whether the plaintiff had established a cause of action or not. It was, therefore, error for the court to charge the jury, over the plaintiff’s exception, that the action was for alienation of affections and not for criminal conversation, and that, therefore, the wife was not precluded from being a witness in favor of the plaintiff. Under section 831 of the Code of Civil Procedure the wife was a competent witness in favor of the defendant, but not in favor of the plaintiff. The charge was, therefore, prejudicial and. calls for the reversal of the judgment.
¶2Judgment arid order affirmed, with costs.