Nearing v. Van Fleet — 24 N.Y.S. 531

Majority

p. 531

(71 Hun, 137.)

NEARING v. VAN FLEET.

(Supreme Court, General Term, Second Department.

July 28, 1893.)

Headnote

1. Breach of Marriage Promise—Sufficiency of Evidence.

In an action for breach of marriage promise, defendant admitted that he frequently called on plaintiff, and took her out riding. There was also evidence of others as to the attentions he paid her, and that during all the time she received no other male company. Held a corroboration of the testimony of plaintiff as to the promise, sufficient to warrant a submission of the case to the jury.

2. Same—Postponement of Wedding Day.

The fact that plaintiff, in an action for breach of marriage promise, consented to a two-years postponement of the wedding day, does not relieve defendant from his promise.

3. Same —Pleading and Proof—Variance.

Where the promise was alleged to have been made August, and the evidence shows that several promises were made, it is proper to refuse an instruction thal the verdict must be for defendant if the contract was not made in August

Appeal from circuit court, Orange county.

Action by Alice Nearing against Frank Van Fleet for breach of promise of marriage. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Lewis E. Carr, for appellant.

William H. Crane, for respondent.

This is an appeal from a judgment entered upon a verdict, and also from an order denying a motion for a new trial. The action is for damage for a breach of promise of marriage alleged to have been made during the month of August, 1888, aggravated. by an alleged seduction.

The first point made by the appellant is that there was not sufficient corroboration of the plaintiff to warrant the submission of the case to the jury. We do not see the case in that light. There was evidence of his own admissions that he frequently called on her, and took her out riding; also, evidence of others as to the attentions he paid her, and that during all the time she received no other male company. Again, the declaration of defendant to the doctor who attended the plaintiff shows a knowledge upon the part of the defendant not consistent with his testimony upon the trial. The defendant seems to feel aggrieved because there was no witness, except the plaintiff, who heard him make the promise of marriage. We do not think it unusual or strange that the engagement was not made in the presence of third parties. The conduct of the parties was not only consistent with such an assumption, but furnishes a high degree of proof of such fact. It is difficult to see how, upon the proof, the jury could have reached any other conclusion. The damages were not excessive. In fact, a much larger sum might have been justly awarded.

p. 532

It seems there were several promises made to marry,—one in the fall of 1888, just prior to the seduction of the plaintiff, and again some time after the miscarriage. Now, because the plaintiff consented to wait two years, that did not relieve the defendant from his promise to marry, but it was a mere postponement of the wedding day, and it is not that contract that is sued upon.

Neither do we think the exception to the refusal of the judge to charge that if the jury believed the contract was not made in August, 1888, they must find for the defendant, was error. It is true the allegation in the complaint was that the promise was made in August, but the exact time was not material. But the conclusive answer to the proposition is that there was evidence that marriage had been spoken of on several occasions; and if it was made the last of July, or the first of September, it was not a material variance.

Judgment affirmed, with costs. All concur.