208 A.D. 68 | N.Y. App. Div. | 1924
The plaintiff sued the defendant on a bond given by the defendant and the plaintiff’s husband (the defendant being a brother of plaintiff’s husband) in the sum of $3,000 to secure to plaintiff the payment of the sum of $40 *per week for a period of three years.
It is recited in the bond that the plaintiff had instituted a suit against her husband in New Jersey for absolute divorce.
The defense set up is that the bond was given in consideration of the plaintiff’s agreement to proceed to final decree in said suit but that in violation of her agreement she refused to proceed and discontinued the action.
The theory upon which the action was tried was whether or not such an agreement as alleged in the defense was made, and the only questions presented here are as to the weight of the evidence upon this point and the proper measure of damages.
Plaintiff received the weekly payments of forty dollars from June 24, 1921, up to March 22, 1922, after which she was paid but twenty dollars a week by her husband. It appears that in March, 1922, she discontinued the divorce action. It further appears that prior to the execution of the bond she had been receiving but twenty dollars a week from her husband as temporary alimony in a pending action of separation, and that the increase to forty dollars was to enable plaintiff to discontinue working so that she
The finding of the jury cannot be set aside as against the weight of the evidence. A square issue of fact was presented to the jury, defendant claiming the facts to be as stated and plaintiff denying. Since the finding of the jury is that the alleged agreement relied on as a defense was not entered into, there is not presented for consideration any question of public policy in giving recognition to such an agreement.
The plaintiff has recovered a judgment in the sum of $3,000, the amount of the bond. This was error. The plaintiff is entitled to no more than the actual damage shown to have been incurred at the trial. Respondent contends the parties intended to provide for liquidated damages. -Such a provision never is read into a contract by implication. Even in a case where the parties specifically agree to regard the amount as liquidated damages, if such amount is disproportionate to the damages actually sustained, the court will regard the provision as a penalty, and limit the plaintiff to the actual damage. (Ward v. Hudson River B. Co., 125 N. Y. 230.) Moreover, there was not an absolute repudiation of obligation to pay plaintiff any, alimony, so as to warrant a claim for damages for the entire balance of the period covered by the contract, but payments were being made at the rate of $25 a week. Apparently the action was brought because the weekly payments did not equal $40. The difference between what plaintiff received and should have received under the agreement amounted to $340 at the time of the trial. That is the amount to which she was entitled. (Severson v. Macomber, 153 App. Div. 482; affd., 212 N. Y. 274; Civ. Prac. Act, § 160.)
It follows that the judgment should be modified by reducing the same to $340, and as so modified the judgment and order should be affirmed, without costs.
Clarke, P. J., Smith, Merrell and Martin, JJ., concur.
Judgment modified by reducing the amount thereof to the sum of $340, and as so modified the judgment and the order appealed from are affirmed, without costs. Sett.e order on notice.
