Art. 9. Damages.

It was held in Finnegan v. Hawe, 35 Misc. Rep. 773, 72 N. Y. Supp. 347, 106 St. Rep. 347, that a discharge in bankruptcy does release a judgment against a bankrupt for breach of promise where there was no accompanying seduction or proof of malice tending to show an attempted injury to the character, for in such case it is a mere contract debt of record, and "no willful and malicious injury to the person" within the meaning of the Bankruptcy Act of 1898, § 17, subd. 2.

The fact that a bankrupt went into bankruptcy in order to avoid a particular judgment for breach of promise to marry does not limit the legal effect of his discharge. Finnegan v. Hall, 35 Misc. Rep. 773, 72 N. Y. Supp. 347, 106 St. Rep. 347.

In Matter of McCaulay, 101 Fed. 223, it was held that a judgment for breach of promise to marry was discharged by bankruptcy, even though accompanied by seduction.

Speaking of the elements of damage the court in Wolters v. Schultz, 1 Misc. Rep. 196, 59 St. Rep. 910, 21 N. Y. Supp. 768, says, that the damages should include (a) all expenses justly incurred upon the faith of the violated contract and by reason thereof, and all pecuniary loss directly caused thereby; (b) a sum sufficient, in the discretion of the jury, calmly and judicially exercised, to vindicate plaintiff's character; (c) and in case the defendant is shown to have acted maliciously, unfeelingly, and with evil and dishonest intention, a further award must be made sufficient to be a punishment and a warning to others, and thus a safeguard to society.

"The action is intended as an indemnity for the temporal loss which the plaintiff has sustained, and that embraces the mortification to the feelings, the wounded pride, and all the disappoint

Art. 9. Damages.

ments from the failure of marriage, as well in the losses it has occasioned as in the blow to the affections." Chellis v. Chapman, 125 N. Y. 214, 35 St. Rep. 171, affirming 26 St. Rep. 953.

The damages in an action for breach of promise are in the sound discretion of the jury under the circumstances of each particular case. Southard v. Rexford, 6 Cow. 254.

Where under a promise of future marriage the parties have cohabited as man and wife, and defendant made breach of the original promise, it was held that the woman could not recover for the breach, but might recover back money paid to the defendant in expectation of marriage. McDonald v. McCann, 4 City Hall Rec. 63.

Speaking of the rule of damages, the court, in Johnson v. Jenkins, 24 N. Y. 254, speaks as follows: "If the abandonment of the plaintiff by the defendant was wanton and ruthless, and so accomplished as to manifest an intent unnecessarily to wound her feelings, injure her reputation, and destroy her future prospects, all circumstances showing the defendant to have been influenced by bad motives; then the largest measure of damages, not only by way of compensation to the plaintiff, but, under the rule, by way of punishment to the defendant, were proper. If, on the contrary, the breach of promise was occasioned by a change of circumstances, which, without legally justifying it, took from the abandonment all its character of cruelty and wantonness, and the defendant, in withdrawing from his engagement, was tender of the feelings and reputation of the plaintiff, and so accomplished his purpose as to leave no stain upon her reputation, and do the least injury to her feelings and future prospects, it would be a case for compensatory damages merely. And so the just measure of damages may be varied by every shade and variety of circumstances between the two extremes, and hence every circumstance which can characterize the transaction, or throw light upon the acts and the motives of the actors is admissible in evidence."

Loss of health by the plaintiff cannot be said to be the direct natural and necessary consequence of the breach of contract to marry, and cannot be shown unless special damages are averred on that ground. Bedell v. Powell, 13 Barb. 183.

Art. 9. Damages.

SUBDIVISION 2.

Punitive Damages — Aggravation and Mitigation of.

It is solely the fact that punitive damages are allowed in an action for breach of contract to marry, which allows the action to be classed among torts. "Damages in these actions have never been limited to the simple rule governing actions upon simple contracts for the payment of money." Thorn v. Knapp, 42 N. Y. 483.

If the defendant alleges that the plaintiff has been guilty of fornication, but fails to show it upon the trial, the jury may consider this in aggravation of damages. Southard v. Rexford, 6 Cow.

254.

Where the defendant alleged the unchastity of the plaintiff in his answer, which allegation he failed to prove, the fact may be considered by the jury in aggravation of damages. Thorn v. Knapp, 42 N. Y. 474.

If the conduct of the defendant, in violating his promise, is characterized by a disregard of the plaintiff's feelings and reputation, if he has placed her or induced her to place herself in a false position, or to forego temporal advantages; if the breach of promise is unjustifiable; if the defendant spreads upon the records matters in defense of the action which are scandalous and tend to reflect discredit upon the plaintiff, or stain her reputation, then all of these circumstances may be considered by the jury, and may be availed of by them to enhance the damages. Chellis v. Chapman, 125 N. Y. 214, 35 St. Rep. 171, affirming 26 St. Rep. 953.

The fact that the defendant's promise was made with a view to seducing the plaintiff, and that by means of promises he did so seduce her, may be shown in aggravation of damage. Wells v. Padgett, 8 Barb. 323.

A verdict which amounts to only 4 per cent. for one year upon the estate of the defendant cannot be deemed excessive, and shows that the jury was not influenced by a desire to inflict punitive damages. Campbell v. Arbuckle, 21 St. Rep. 412, 4 N. Y. Supp. 39, affirmed in 123 N. Y. 662.

The animus with which the contract is broken is material, and it is competent for the defendant to prove in mitigation of damage

Art. 9 Damages.

any facts showing his motive was not bad, and his conduct neither cruel nor malicious. Thorn v. Knapp, 42 N. Y. 474.

SUBDIVISION 3.

Amount of Damages.

A verdict of $7,500 was held to be excessive in an action for breach of promise, coupled with seduction, where the plaintiff was receiving a salary of $30 a week from her father. Held, that the recovery should be reduced to $2,500. Kolsch v. Jewell, 21 App. Div. 581, 48 N. Y. Supp. 527.

While the jury is the final arbiter of damages, the appellate courts have the duty to review a verdict, and where the verdict has been illegally influenced a new trial should be ordered. Wolters v. Schultz, 1 Misc. Rep. 196, 21 N. Y. Supp. 768.

A verdict of $1,500 is not excessive where it is shown that the defendant induced the plaintiff to give him charge of her money and he spent the same. Finkelstein v. Barnett, 16 Misc. Rep. 488, 38 N. Y. Supp. 961, 74 St. Rep. 551.

Where an action was brought by a widow, forty-six years of age, and there was no proof as to the defendant's circumstances, a verdict of $2,500 was set aside as excessive. Poser v. Kahrs, 2 City Ct. 92.

A verdict of $1,500 was held not to be excessive where the defendant asserted the bad character of the plaintiff. Rich v. Mayer, 26 St. Rep. 107, 7 N. Y. Supp. 70.

A verdict of $8,000 was held not to be excessive where the defendant was a man of means and the plaintiff had given up the position of a school teacher at his request. Chellis v. Chapman, 26 St. Rep. 953, 7 N. Y. Supp. 78.

A verdict of $5,000 was held not to be excessive where the wrong was aggravated by seduction. Nearing v. Van Fleet, 71 Hun, 137, 54 St. Rep. 308, 24 N. Y. Supp. 531, affirmed in 151 N. Y. 643.

An assault is an attempt or offer, accompanied by a degree of violence, to commit some bodily harm by any means calculated to produce the end, if carried into execution. Bacon's Abr., Assault.

An assault is defined * * * to be an attempt with force or violence to do corporeal injury to another; and may consist of any act tending to such corporeal injury, accompanied with such circumstances as denote at the time an intent, coupled with a present ability, to use actual violence against a person. Cowen, J., in Hays v. People, 1 Hill, 352.

In the same case the court says: “There need not be even a direct attempt at violence; but any indirect preparation toward it under the circumstances named, such as drawing a sword or bayonet, or even laying hands upon his sword, will be sufficient." Blackstone defines assault as an attempt or offer to beat another, without touching him; as if one lifts up his cane, or his fist, in a threatening manner, at another; or strikes at him, but

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