Nearing v. Van Fleet — 54 N.Y. St. Rep. 308

Majority

p. 308

Alice Nearing, Resp’t, v. Frank Van Fleet, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Breach of promise—Corroboration of plaintiff.

Evidence of admissions of the defendant that he called frequently on plaintiff and took her riding, with testimony as to the attentions he paid her and that she received no other male company during the time, is sufficient to corroborate the testimony of the plaintiff in an action for breach of promise.

p. 309

2. Same—Damages.

A verdict lor §5,000 in an action for breach, of promise and seduction is not excessive.

3. Same—Postponement.

The fact that plaintiff consented to wait two years does not relieve the defendant from his promise to marry.

4. Same—Variance.

Where the complaint alleges that the promise was made in August, but the evidence shows that marriage was talked of on several occasions, it is not a material variance if it was made the last of July or first of September, and it is not error for the court to refuse to charge that if the jury believed that it was not made in August they must find for defendant.

Appeal from judgment'in favor of plaintiff, entered upon verdict for $5,000, and from order denying motion for a new trial.

Lewis E. Carr, for app’lt; William H. Crane, for resp’t.

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 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.

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.

p. 310

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.

Barnard, P. J., and Dykman, J., concur.