Mazzarella v. Whelan

Opinion by

Mr. Justice Schaffer,

In this action of criminal conversation the trial judge entered a nonsuit because the statement of claim averred defendant had sexual intercourse with plaintiff’s wife “on or about September 7th, 1921,” while the proofs showed the intercourse did not take place on that date, but on August 26th or 27th.

In Gardner v. Madeira, 2 Yates 466, a criminal conversation action, tried before the Supreme Court at nisi prius, plaintiff declared that defendant on the first of January, 1796, and at divers other times from thence until the first of November following had…