Rich v. Mayer — 26 N.Y. St. Rep. 107

Majority

p. 107

Mary Rich, Resp’t, v. John Mayer, App’lt.

(City Court of New York, General Term,

Filed October 3, 1889.)

Headnote

1. Breach oe promise — Damages.

In an action for breach of promise where the defense was the bad character of the plaintiff, a verdict of $1,500, Held, not excessive.

3. Same — Divorced woman mat sue in her maiden name.

A woman who has obtained a divorce from her husband may maintain an action for breach of promise in her maiden name.

Appeal from judgment entered on verdict of the jury in favor of the plaintiff.

M. A. Gearon, for app’lt; A. P. Wagener, for resp’t.

The action is for breach of a promise to marry. It appears that the plaintiff entered the defendant’s employ to

p. 108

nurse Ms sick wife, who subsequently died. The plaintiff at the time had a husband who annoyed her while in the defendant’s house. The plaintiff proposed to get a divorce from him, and the ■defendant furnished part of the money required to get it. The plaintiff swears that, when the divorce was obtained, the decree was handed to her by the defendant, who promised to marry her. That he gave her a locket containing Ms picture, and took liberties with her which a disinterested person would not be apt to attempt. The defendant subsequently refused to marry her. There is no doubt about the breach, and the plaintiff was corroborated by her mother in respect to the promise. The defendant undertook to prove as an excuse for non-performance that the plaintiff was a lewd woman, and had intercourse with other men. She denied this, and the jury, as they had a right to do, disbelieved the evidence offered by those who assailed her character and believed the plaintiff when she testified that then’ statements were without the slightest truth

At the time the promise was made, both parties were in a legal condition to make a contract; the defendant had' lost a good wife, and the plaintiff, by divorce, had been forever separated from a bad husband. Both had had their experience in the marital relation, and were in a condition to act intelligently. If the defendant did not intend to marry the plaintiff, he certainly exhibited great interest in her divorce proceeding, and by presenting his picture in a locket endeavored to impress himself upon the plaintiff as a warm friend, if not admirer. There was certainly evidence enough to warrant the jury in concluding that his intentions were honorable, and that mairiage was contemplated. The jury awarded $1,500 damages. Considering the latitude that juries have in cases of this kind, Sutherland on Damages, vol. 3, page 316, we cannot say that they did not exercise their best judgment, or that the damages are not within reasonable limits. They do not evidence passion or prejudice and are not excessive. On the contrary, they seem to be moderately fair, in view of the proofs and the nature of the defense attempted to be established. Id., 320, and cases cited. The alleged cohabitation by the defendant prior to the promise constitutes no defense, for the promise was made with knowledge of the fact. Id,, 326, and cases cited. 'If the defendant did not promise to marry the plaintiff, he has by Ms conduct given strong ■corroboration to the testimony of the plaintiff and her mother, wherein they swear that he did make the promise. The finding of the jury upon the evidence is satisfactory, and the motion for a new trial was properly denied. The only exception that requires consideration is the denial of the motion to dismiss on the ground that the action was brought in the plaintiff’s maiden name, and not in that of her divorced husband.

She had no husband at the time the promise was made or action commenced, and there was no impropriety or illegality in thereafter assuming her maiden name. In re Snook, 2 Hilt., 566. A name is that by which we distinguish a particular individual (Bouvier’s Dict’y, title, Name), and if in making a contract a per

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son uses a name, he will not be permitted to say that it is not his name. Id. The correct party is before the court; the objection ■did not appear on the face of the complaint, and was not formally taken by answer, Code, § 419, and must be regarded as waived

The objection is formal, not substantial, and an amendment might have been, allowed at the trial, Code, § 723, or could be made even now, to sustain the judgment. Id.

But we do not regard any amendment as necessary. Nil facit error nominis cum de corpore constat At common law, a person may lawfully change his name. He is bound by any contract into which he may enter in his adopted or reputed name, and by his recognized name he may sue, or be sued. See cases cited in Anderson’s Dict’y, title, Háme. The plaintiff had procured a divorce from a bad husband, and judiciously dropped his bad name and resumed that given by her parents. It was in effect the resumption of her original name by operation of law, rather than choice or fancy. It was certainly not a change made for sinister or ulterior motives, but one that is praiseworthy and commendable. The marriage relation gave her the name she bore during its continuance. Its dissolution restored her former rights, ■one of which was the liberty of bearing her family name, and this privilege she has seen fit to exercise. Upon the entire case, we are of opinion that the judgment and order appealed from should ■be affirmed, with costs.

McAdam, Ch. J., Nehrbas and McGown, JJ., concur.