73 N.Y.S. 270 | N.Y. App. Div. | 1901
On the 30th day of January, 1900, Josephine Disler recovered a judgment in the - Supreme Court, county of Kings, against James J. McCauley for $3,295.80 for breach of promise of marriage. Subsequently, and in the month of March, 1900, defendant filed a petition in bankruptcy, with schedules of his indebtedness and assets, the schedules of indebtedness showing only four creditors, the plaintiff for the amount of her judgment, and- three others aggregating $60. The defendant was adjudged a bankrupt, and procured a stay of execution from the United States District Court for the eastern district of New York of the judgment above mentioned. The plaintiff moved to vacate the stay, which motion was denied, and no appeal has been taken from the order denying the motion. " In June, 1900, the bankrupt applied for his discharge, and was discharged without opposition, the plaintiff never having
Section 1268 of the Code of Civil Procedure provides that “ If it appears upon the hearing that he (the judgment debtor) has been discharged from the payment of that judgment or the debt upon which such judgment was recovered, an order must be made directing said judgment be cancelled and discharged of record,” and as no question of the sufficiency of the moving papers is suggested, it was the duty of the court at Special Term to make the order asked for, unless the plaintiff’s judgment comes within the provisions enumerated in section 17 of the Bankruptcy Law (30 U. S. Stat. at Large 550) which provides as follows : “ A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as are judgments in actions for frauds or obtaining property by false pretenses or false representations or for willful and malicious injuries to the person or property of another.”
The plaintiff contends, and the learned court at Special Term adopts the theory, that the action upon which the judgment was recovered was not founded upon a contract merely, but was based upon a breach of contract of marriage, coupled with seduction ; that the seduction was pleaded in the complaint and proved upon the trial, and was " as much the foundation of the damages as the breach of promise of marriage.”. It is probably true, at least in a measure, that the amount of damages was predicated upon the seduction, but the right of action rests wholly upon the contract of marriage and its breach. The exception in the statute is of “ judgments in actions for frauds or obtaining property by false pretenses or false representations or for willful and malicious injuries to the person or property of another,” and the fact that the accompanying seduction operated to increase the damages which naturally attach to a breach of contract of marriage, has nothing to do with the character of the action. The law has
The plaintiff, having no cause of action for the seduction, to which she consented, cannot make that fact a substantive part of her cause of action. It was proper to plead the seduction as an element of damages, for it cannot be questioned that a young woman who has surrendered her person to a man, and who is pregnant by him, is in a position to suffer a larger measure of damages than one who is merely disappointed in her expectations of married happi
The order appealed from should be reversed, without costs, and motion granted, without costs.
Goodrich, P. J., Bartlett, Hirschberg and Jenks, JJ., concurred.
Order reversed, without costs, and motion granted, without costs.