Button v. McCauley

5 Abb. Pr. 29, 4 Trans. App. 447

• Court: New York Court of Appeals
• Decided: September 15, 1867
• Status: Published

Opinion

Grover, J.

—The declaration of defendant to the plaintiff that he would make a good home for her, was competent evidence, in connection with the other conversation had at the time. It tended to prove the contract of marriage alleged by the plaintiff. The same may be said of his declaration to her, that he would build a brick house, and fit it up nice, keep a carriage, &c.

The defendant offered to prove that the plaintiff, while she was living with him, drank intoxicating liquors to excess, and sometimes got intoxicated. The plaintiff objected to this proof. The objection was sustained, and the defendant excepted. The case is very brief, and does not fully show the evidence that had been given.

When this proof was offered, the fair intendment from the case is, that the defendant, although unmarried, had a family with which he lived ; that the plaintiff lived with him, for a time, as housekeeper. That the courtship was had, and the promise of marriage was made, while she so lived with him. The plaintiff’s counsel insists that the evidence was not admissible under the answer. The answer was a general denial only. Under this answer it is clear that the evidence offered was not competent as a defense to the action (Code of Pro., § 149 ; McKyring v. Bull, 16 N. Y., 297). It was admissible under the answer, in mitigation of damages, if competent for that purpose (Travis v. Barger, 24 Barb., 614, and cases cited). I think the evidence was competent in mitigation of damages (Palmer v. Andrews, 7 Wend., 142; Willard v. Stone, 7 Cow., 22, and cases cited). In these cases the evidence related to unchaste and immodest conduct, and it'was held competent, either iñ bar or mitigation, according to the particular facts established.

The reasoning of the court shows that any misconduct' showing that the party complaining would' be an unfit companion in married life, may be given in evidence, in mitigation of damages. It requires no argument to prove that habits of intoxication render the party addicted to them thus unfit.

It is insisted by the plaintiff’s counsel, that the evidence being inadmissible under the pleadings as a defense, the counsel should have specified in his offer the purpose for which he proposed to introduce it. This position cannot be sustained. When there is an offer of evidence competent for any purpose in the cause, and the evidence is rejected, it is error, although not competent for other purposes in the action. In Travis v. Barger the ruling of the judge at circuit was sustained, upon the ground that it appeared that the evidence rejected was offered as a defense to the action, and that it was properly rejected as inadmissible, under the answer, for that purpose.

Under these circumstances, if the evidence is admissible for some other purpose, the counsel should specify such purpose. This is all that the case decides upon this point.

In the present case, the offer was general, and the ground of the rejection does not at all appear.

All that the case shows is, that competent evidence in mitigation of damages was offered and rejected, without anything showing the purpose of the offer or ground of rejection.

It is further insis'.ed that the defendant may have induced the plaintiff to. drink, or may have known of this habit, at the time of entering into the contract.

The answer to this is, that if such facts existed, it was incumbent upon the plaintiff to prove them. The defendant, in his offer, was not bound to negative them.

My conclusion is, that the judgment appealed from should be reversed and a new trial ordered.

All conckrred in reversing the judgment, except Parker and Hunt, JJ.