Art. 7. Evidence.

however, that declarations of the defendant as to specific property, etc., might be admissible. Totten v. Read, 32 St. Rep. 46, 10 N. Y. Supp. 318, 16 Daly, 282.

Evidence of the defendant's financial standing should be confined to general reputation; to that extent it is admissible. Kniffen v. McConnell, 30 N. Y. 285.

Evidence of defendant's general reputation as to wealth is competent upon the question of damages in an action for breach of promise to marry. Chellis v. Chapman, 125 N. Y. 214, 35 St. Rep. 171, affirming 26 St. Rep. 953, 7 N. Y. Supp. 78.

Where the defendant married a woman other than the plaintiff, evidence of the wealth of the defendant's wife is not admissible to show the motive of defendant or his social position. Crandall v. Quinn, 19 J. & S. 276.

While evidence of the reputed amount of defendant's property is competent because accurate knowledge of the amount is in most cases confined to the defendant and his friends, yet it is not improper to permit the amount of the property in defendant's possession to be shown by direct and precise evidence; for example, witness was allowed to testify that the defendant's farm and personal property were worth about $8,000. Crosier v. Craig, 47 Hun, 83.

Evidence of the pecuniary circumstances of the defendant's mother is incompetent. Aldis v. Stewart, 4 Misc. Rep. 389, 53 St. Rep. 518, 24 N. Y. Supp. 239. Nor is such error cured by a direction of the judge to the jury to disregard it if it can be seen that such evidence affected the verdict.

SUBDIVISION 6.
Of Damage.

The loss of plaintiff's health is not a direct, natural, and necessary consequence of the breach of promise to marry, and proof thereof is inadmissible unless such damages are specially claimed. Bedell v. Powell, 13 Barb. 183.

On the question of damage the jury may consider a letter written by the defendant purporting to contain a proposal for her to become his mistress instead of his wife. Campbell v. Arbuckle, 21 St. Rep. 412, 4 N. Y. Supp. 39, affirmed 123 N. Y. 662.

It is not necessary to show that the plaintiff suffered anguish of mind. Getzelson v. Bernstein, 15 Misc. Rep. 627, 37 N. Y. Supp. 220, 72 St. Rep. 799.

Art. 8. Procedure and Trial.

The strenuous opposition of the defendant's mother to the marriage may be shown in mitigation of damages. Johnson v. Jenkins, 24 N. Y. 254.

The father of the defendant may show that he remonstrated with the defendant against the marriage, but should not be allowed to specify immoral conduct as a ground of such remonstrance unless he personally knows the ground to be true. McKee v. Nelson, 4 Cow. 354.

SUBDIVISION 7.

Miscellaneous.

Proof that the contract was dependent upon the deposit of a sum of money by the plaintiff with the defendant, and that such sum was deposited, is admissible as part of the res gesta. Getzelson v. Bernstein, 15 Misc. Rep. 627, 37 N. Y. Supp. 220, 72 St. Rep. 799.

All the circumstances attending the breaking off of the engagement are part of the res gesta. Johnson v. Jenkins, 24 N. Y. 252.

Where on cross-examination the plaintiff testified that she would not now marry the defendant, she may on redirect-examination give the reasons therefor. Chellis v. Chapman, 26 St. Rep. 953, 7 N. Y. Supp. 78.

Where the defendant asked a third person to intercede for him with the plaintiff, such person may testify that she communicated his conversation to the plaintiff. Chellis v. Chapman, 26 St. Rep. 953, 7 N. Y. Supp. 78.

Evidence is admissible to show that the defendant induced the plaintiff to give him custody of her money and that he spent the same. This is part of the res gesta and shows intent. Finkelstein v. Barnett, 16 Misc. Rep. 488, 38 N. Y. Supp. 961, 74 St. Rep. 551.

The Code, § 549, includes among the actions where the defendant may be arrested the action to recover damages for “breach of promise to marry.”

By section 635 of the Code of Civil Procedure a warrant of attachment is prohibited in actions upon a contract to marry.

An open commission may be granted to the defendant to take testimony as to the plaintiff's character in an action for breach of promise. Burnell v. Coles, 25 Misc. Rep. 409, 88 St. Rep. 940, 54 N. Y. Supp. 940.

SUBDIVISION 2.

Charge.

It is proper to charge that if the defendant comes into court and attempts to prove the plaintiff guilty of misconduct with other men, of which charge he knew she was innocent, and if the mis conduct was committed by himself, it aggravates the injury and strengthens the claim to damage, although such misconduct is not set up in the answer. Kniffen v. McConnell, 30 N. Y. 285.

Where the pregnancy of the plaintiff was a conceded fact and the judge charged that if the jury were satisfied that the defendant was not the father of the child, they should find for the defendant. Held, that there was ground for criticism; that under the facts the defendant was not to prove that he was not the father of the child, but it was for the plaintiff to prove that he was. Kniffen v. McConnell, 30 N. Y. 285.

It is proper for the court to charge that if the defendant alleges the unchastity of the plaintiff in his answer by way of justifica

Art. 8. Procedure and Trial.

tion, and fails to prove such fact, the allegation may be considered by the jury in aggravation of damage. Thorn v. Knapp, 42 N. Y. 474, citing Parsons on Contracts, 551.

In Chellis v. Chapman, 125 N. Y. 214, 35 St. Rep. 171, affirming 26 St. Rep. 953, a charge was upheld where the jury were instructed, in substance, that if the plaintiff was entitled to damages, they (jury) would certainly give compensatory damages, and that in the exercise of their discretion, based on the proofs and circumstances of the case, they might award exemplary damages.

Where the plaintiff testified that the defendant made an express promise to marry, and made no claim of an implied promise, it was held not to be error to charge that the jury could find for the plaintiff only in case they found an express promise. Sause v. Morris, 19 J. & S. 41.

Where it appeared that the plaintiff had destroyed certain of the defendant's letters,- Held, that it was no error for the court to refuse to charge that the destruction of such letters showed an intent to destroy others, and was a strong circumstance against the truth of the plaintiff's testimony. Held, further, that the destruction of the letters raised no presumption against the plaintiff in the absence of anything showing that she destroyed letters containing evidence against her, or at least letters required by defendant to be produced upon the trial. Fowler v. Martin, 1 T. & C. 377, affirmed, without opinion, in 56 N. Y. 676.

It was held to be error to charge that if under all the circumstances the jury found that the defendant had wronged the plaintiff purposely and intentionally, if his conduct was malicious, they were bound to give exemplary damages: (1) such sum as you think it is proper for the malice of the conduct; (2) as an example to prevent other men in like case attempting the same thing. The error lay in depriving the jury, in case they found the facts, of all discretion on the question whether exemplary damages should or should not be given. Held, further, that the error was a radical one. Jacobs v. Sire, 4 Misc. Rep. 398, 53 St. Rep. 515, 23 N. Y. Supp. 1063.

Where it was shown that the plaintiff had been guilty of indecent conduct, but whether before or after the promise of marriage did not appear, it was held to be error for the court to charge that the jury must either give "exemplary damages or nothing," implying thereby that if the defendant was not entirely discharged from

Art. 8. Procedure and Trial.

his promise by the plaintiff's conduct he could make no claim to mitigation of damage upon such grounds. Palmer v. Andrews, 7 Wend. 142.

Where the defense was infancy it was held to be error for the court to refuse a charge that if the jury believe the defendant was under age of twenty-one at the time of promise of marriage they must find a verdict for the defendant. Leichtweiss v. Trieskow, 21 Hun, 487.

It is not erroneous to charge that if the jury find that the defendant seduced the plaintiff under a promise of marriage it aggravates the damage. Kniffen v. McConnell, 30 N. Y. 285.

In Campbell v. Arbuckle, 21 St. Rep. 412, 4 N. Y. Supp. 39, affirmed in 123 N. Y. 662, it was held not to be error to charge that if the jury found for the plaintiff she was entitled to recover such damages as the jury might award; that they were permitted to exercise their discretion in regard to the amount of damage, provided only that their conduct was not marked by prejudice, passion, or corruption.

SUBDIVISION 3.
Appeal.

Where the defendant pleaded infancy, and the jury found him to be of age, and defendant waited until the time he claimed he became of age and then moved to set aside the judgment, the motion was denied. The remedy should have been to appeal from the judgment. Genser v. Freeman, 2 City Ct. 406.

SUBDIVISION 4.

Execution.

Judgment in an action for breach of promise to marry is not a debt recoverable against a defendant's real property under the Homestead Act. Cook v. Newman, 8 How. Pr. 523.

SUBDIVISION 5.

Discharge in Bankruptcy.

A judgment in an action to recover for breach of promise to marry is discharged by bankruptcy, even though the plaintiff pleaded and proved seduction in aggravation of the damage. Disler v. McCauley, 66 App. Div. 42, 73 N. Y. Supp. 270, 107 St. Rep. 270, reversing 35 Misc. Rep. 411. (See Amendment 1903.)