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October 28, 1947


The opinion of the court was delivered by: KNIGHT

Plaintiff, a resident of North Carolina, sues defendant, a resident of New York, for $ 165,000 for breach of promise of marriage, alleging in her complaint that the promise was made and accepted in Southern Pines, North Carolina, on or about March 30, 1945; that it was agreed that the marriage ceremony would be solemnized on September 17, 1946; that plaintiff on numerous occasions requested him to fulfill his promise but he made excuses and requested postponements; that, in January, 1947, he requested postponement for another year, to which she refused to agree; 'that (she) then insisted that (he) carry out his agreement but that (he) since that time has failed and refused to carry out his promise to marry the plaintiff although plaintiff at all times has been ready and willing to carry out the agreement on her part.'

Plaintiff further alleges, upon information and belief, that 'the laws of North Carolina provide that a valid contract of marriage exists where there is an offer of marriage and an acceptance having mutuality * * *; that where no definite time or place is fixed or agreed upon, the contract will be construed as providing for the marriage within a reasonable time as determined by the circumstances of the particular case * * * ; that a refusal to perform a marriage without sufficient excuse constitutes a breach thereof for which the person causing such breach is liable to the other in damages.'

 Defendant moves to dismiss the complaint on the grounds (1) that it 'fails to state a claim upon which relief can be granted', (2) that it 'fails to state facts sufficient to constitute a cause of action, and is insufficient in law upon the face thereof.'

 Plaintiff's counsel urge in their brief 'that the only question for decision upon this motion is whether Article 2-A of the New York Civil Practice Act should be held to prevent the plaintiff from obtaining relief in this Federal Court, sitting in New York, upon a transitory cause of action admittedly arising in North Carolina, where the plaintiff resides, based upon a grievous wrong done her by reason of plaintiff's breach of his contract of marriage.'

 Article 2-A of the New York Civil Practice Act provides:

 'Sec. 61-a. Declaration of public policy of state. The remedies heretofore provided by law for the enforcement of actions based upon alleged alienation of affections, criminal conversation, seduction and breach of contract to marry, having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases having resulted in the perpetration of frauds, it is hereby declared as the public policy of the state that the best interests of the people of the state will be served by the abolition of such remedies. Consequently, in the public interest, the necessity for the enactment of this article is hereby declared as a matter of legislative determination.'

 'Sec. 61-b. Certain causes of action hereafter accruing abolished. The rights of action heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction, or breach of contract to marry are hereby abolished.'

 This latter section became effective March 29, 1935.

 The Court of Appeals of New York in Fearon v. Treanor, 272 N.Y. 268,at page 275, 5 N.E.2d 815, 817, 109 A.L.R. 1229, held: 'We are convinced that the Legislature, in passing the statute, acted within its constitutional power to regulate the marriage relation for the public welfare.' On a motion to amend the remittitur, the court said (273 N.Y. 645, 8 N.E.2d 36) that the remittitur will be amended by adding, 'This Court held that the law aforesaid is not repugnant to the Constitution of the United States.' On appeal to the U.S. Supreme Court, the latter decided: 'Per Curiam. The appeal herein is dismissed for the want of a substantial federal question.' 301 U.S. 667, 57 S. Ct. 933, 81 L. Ed. 1332. A rehearing was denied, 302 U.S. 774, 58 S. Ct. 6, 82 L. Ed. 600.

 The provisions of the act relating to alienation of affections and criminal conversation were also held constitutional in Hanfgarn v. Mark, 274 N.Y. 22, 8 N.E.2d 47. An appeal to the U.S. Supreme Court was unanimously dismissed 'for the want of a substantial federal question.' 302 U.S. 641, 58 S. Ct. 57, 82 L. Ed. 498. Among the cases which it cites is Silver v. Silver, 280 U.S. 177, at page 122, 50 S. Ct. 57, 58, 74 L. Ed. 221, 65 A.L.R. 939, where it had said: 'We need not, therefore, elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.'

 Plaintiff's counsel urge that the prohibition in Article 2-A of the N.Y. Civil Practice Act does not apply to her because the promise of marriage was made and breached outside of the state. They find a limitation of the statute in Sec. 61-d, which reads: 'Sec. 61-d. Legal effect of certain acts hereafter occurring. No act hereafter done within this state shall operate to give rise, either within or without this state, to any of the rights of action abolished by this article. No contract to marry, hereafter made or entered into in this state shall operate to give rise, either within or without this state, to any cause or right of action for the breach thereof.'

 That this section does not limit the general prohibition contained in Section 61-b is evident from the provisions of Sections 61-e and 61-g.

 Section 61-e provides: 'It shall hereafter be unlawful for any person, either as party or attorney, or an agent or other person in behalf of either, to file or serve, cause to be filed or served or threaten to file or serve, or to threaten to cause to be filed or served, any process or pleading, in any court of the state, setting forth or seeking to recover a sum of money upon any cause of action abolished or barred by this article, whether such cause of action arose within or without the state.'

 Section 61-g provides: 'Any person who shall violate any of the provisions of this article shall be guilty of a felony which shall be punishable by a fine of not less than one thousand dollars nor more than five thousand dollars, or by imprisonment for a term of not less than one year nor more than five years, or by both such fine and imprisonment, in the discretion of the court.'

 'The rule of construction prescribes, that statutes imposing penalties, in case they are disobeyed, shall be held to be mandatory, and that courts shall not then consider the circumstances of a case, or its hardship or inconvenience.' Bradley v. Buffalo, N.Y. & Erie R. Co., 34 N.Y. 427, 431.

 Section 61-h further declares: 'This article shall be liberally construed to effectuate the objects and purposes thereof and the public ...

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