Getzelson v. Bernstein

15 Misc. 627, 37 N.Y.S. 220, 72 N.Y. St. Rep. 799

• Court: City of New York Municipal Court
• Decided: February 15, 1896
• Status: Published

Opinion

Schuchman, J.

This is an appeal from an order sustaining :a demurrer interposed by the defendant to plaintiff’s complaint specifying two grounds of demurrer.

First. That two causes of action, have been improperly united in one cause of action, to wit, one for breach of promise of marriage and one for seduction.

Second. That the said amended complaint upon the face thereof does not state facts sufficient to constitute a cause of action.

The first paragraph of the complaint contains an allegation of the mutual promise of marriage “on request”, made by plaintiff and defendant.

The second paragraph alleges the readiness and willingness of the plaintiff to fulfill her promise.

The fifth'paragraph alleges a request made by plaintiff on. defendant to fulfill his promise, and his refusal to comply and consequent breach of his promise. - .

These allegations made a good complaint of a cause of action of “ breach of promise of marriage.”

The allegations in paragraphs third and fourth are set up in aggravation of damages. Wells v. Padgett, 8 Barb. 323.

They'do not constitute a cause of action in plaintiff “ for ■ seduction,”, because a person seduced cannot -maintain an action for seduction. ■ Hamilton v. Lomax, 26 Barb. 615.

She can only maintain an action for personal injury when a rape has been committed upon her, and that action is given her by statute. Kœnig v. Nott, 8 Abb. 384, 388.

The complaint contains but one cause of action.

It follows, therefore, that the order appealed'from must be reversed, with costs, and the demurrer overruled, with costs, and leave is given to defendant to answer plaintiff’s complaint within six days after service of the order to be entered on this appeal on "payment of said costs.

Yaw Wtok, Oh. J., concurs.

Order reversed, with costs, and demurrer overruled, with costs, with leave to defendant to answer.