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EDWIN S. LOWE v. JAYNE D. QUINN (06/24/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.42162 <http://www.versuslaw.com>; 301 N.Y.S.2d 361; 32 A.D.2d 269 June 24, 1969 EDWIN S. LOWE, RESPONDENT,v.JAYNE D. QUINN, APPELLANT Appeal from an order of the Supreme Court at Special Term (Arthur Markewich, J.), entered January 7, 1969 in New York County, which denied defendant's motion for summary judgment and granted plaintiff's cross motion to amend the complaint. Patrick M. Wall of counsel (Edward Bennett Williams, attorney), for appellant. Philip Gelfand for respondent. Steuer, J. Eager, J. P., and Capozzoli, J., concur with Steuer, J.; Tilzer, J., dissents in opinion. Author: Steuer


Appeal from an order of the Supreme Court at Special Term (Arthur Markewich, J.), entered January 7, 1969 in New York County, which denied defendant's motion for summary judgment and granted plaintiff's cross motion to amend the complaint.

Steuer, J. Eager, J. P., and Capozzoli, J., concur with Steuer, J.; Tilzer, J., dissents in opinion.

Author: Steuer

 Defendant appeals from an order which denied her application for summary judgment. Plaintiff sues for the return of a ring. The operative facts, which are not contested, are that he gave the ring to defendant upon her promise to marry him and that she later renounced her intention so to do. Further, that at all material times the plaintiff was married to another. He was living apart from his wife and divorce was contemplated. He alleges that the mutual promises to marry were conditioned upon his ability to obtain a divorce.

Actions for the recovery of an engagement ring have undergone a curious history in this jurisdiction. It was recognized that the ring was distinct from other premarital gifts because of its symbolic nature and was recoverable if the donee terminated the engagement (Beck v. Cohen, 237 App. Div. 729). However, following the statutory abolition of actions for breach of promise to marry it was held that an action for return of the ring was not maintainable (Josephson v. Dry Dock Sav. Inst., 292 N. Y. 666). The underlying theory was that the public policy to deny recognition to claims for damages founded on an alleged breach of the promise to marry embraced actions for the return of gifts predicated on that promise. So the law remained until in 1965 the Legislature enacted section 80-b of the Civil Rights Law, which in pertinent part reads: "Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel * * * when the sole consideration for the transfer of the chattel * * * was a contemplated marriage which has not occurred."

The section further provides for discretionary power in the court, if justice so requires, to award the donee a lien on the chattel for improvements made or to award a money judgment in lieu of one for return of the chattel.

The section does not create a new cause of action. It merely removes the bar which, for a time, had made the rights engendered by the facts unenforceable. This is apparent from the opening words: "Nothing in this article contained shall be construed to bar a right of action". Patently the Legislature decreed a rule of construction which was contrary to that currently followed by the courts to give effect to the provisions of another statute. As Judge Asch concluded in a scholarly review of the section: "The new section presumably restores the common-law rules which were in effect prior to the enactment of the anti-heart balm's statute." (Goldstein v. Rosenthal, 56 Misc. 2d 311, 314.)

Reference to those common-law rules determines this action. The essential element which distinguishes the action for recovery of a ring given in contemplation of marriage from other actions for the return of other gifts the delivery of which has been completed is the breach by the donee of the contract to marry. Where one of the parties is already married the contract to marry is completely void (cf. Haviland v. Halstead, 34 N. Y. 643; Williams v. Igel, 62 Misc. 354; Davis v. Pryor, 112 F. 274). The fact that the married promisor contemplated divorce and the promises were conditional upon that eventuality does not validate the agreement (Smith v. McPherson, 176 Cal. 144; Leupert v. Shields, 14 Colo. App. 404; Noice v. Brown, 38 N. J. L. 228; 49 Harv. L. Rev. 648).

It would logically follow that, there being no valid agreement which could be breached, the gift remains absolute. However, in jurisdictions where the question has arisen decision denying recovery has been placed on grounds of public policy and the equitable principle of clean hands (Malasarte v. Keye, 13 Alaska 407; Morgan v. Wright, 219 Ga. 385; Armitage v. Hogan, 25 Wn. [2d] 672).

The ordered entered January 7, 1969, should be reversed on the law, the motion granted, and cross motion denied, with costs and disbursements to appellant.

Disposition

Order entered January 7, 1969, reversed, on the law, with $50 costs and disbursements to the appellant, the motion granted and the cross motion denied; and the Clerk is directed to enter judgment against the plaintiff with costs.

Tilzer, J. (dissenting).

I agree with the majority that section 80-b of the Civil Rights Law did not create a new cause of action, but only removed from the ban of the anti-heart balm statute suits for the return to the donor of gifts in contemplation of marriage.

Here we are concerned with such an action. The plaintiff seeks the return of an engagement ring, a unique type of gift, one whose conditional nature has been recognized for centuries. And, while in this case the condition upon which the ring was given to the defendant could not be carried out at the time, it was the defendant rather than the plaintiff who made impossible consummation of the parties' agreement. Aware of the fact that plaintiff was a married man, that he had been separated from his wife for several years and that a divorce was imminent, defendant attended a party at which the "engagement" of plaintiff and defendant was announced. She received a ring from the plaintiff, the subject of this action, a 10 1/2 carat diamond ring valued at $60,000, as a pledge of their understanding. Less than a month after defendant received the ring, it would appear she had second thoughts concerning the plaintiff and stated that "the agreement entered into between plaintiff and myself was ended." When asked to return the ring, ...


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