
    Leon Larocque, as Administrator, Etc., of Harriet Larocque, Deceased, Plaintiff, v. Abraham Conheim, Defendant.
    (Supreme Court, Oneida Special Term,
    February, 1904.)
    Action by an administrator for breach of a promise of marriage made to his intestate — Survival of causes of action — Seduction — Relief refused one who bases his claim upon his own illegal act.
    The complaint in an action brought by the administrator of an infant to recover damages for her death alleged that she was his daughter, that the defendant seduced her under a promise of marriage which he did not intend to keep, that she became pregnant and that he wrongfully “ caused her to submit ” to a criminal operation and abortion from the effects of which she died. On demurrer to the complaint for insufficiency,
    Held, that in so far as the complaint alleged as a cause of action a breach of promise of marriage, accompanied by seduction, that cause of action did not survive and pass to her personal representatives nor was it aided by the allegation that the defendant made the marriage promise fraudulently and did not intend to keep it.
    That the action was not maintainable under Code Civ. Pro., § 1902, as one for seduction as the decedent could not have maintained such an action if living.
    That there could be no recovery under that section for the criminal operation and this because as the complaint alleged that the decedent submitted to it she also became guilty of a crime (Penal Code, § 295) when she submitted, there being no allegation that the defendant bore such a relation to her as would give him special opportunity to coerce or overcome her will.
    Demurrer to complaint.
    
      Eied 0. Schraub, for plaintiff.
    H. B. Butherford, for defendant.
   Bogues, J.

The plaintiff alleges that Harriet Larocque was his daughter; that in January, 1902, the defendant wrongfully seduced and carnally knew her; that she was then aged nineteen years, was previously chaste and of good reputation; that said seduction- was accomplished under a promise of marriage, which the defendant did not intend to keep, but the same was made for the purpose of subjecting her to his lusts and debauching her; that by reason of such intercourse and cohabitation she became pregnant about the month of April, 1902; that at that time the defendant wrongfully caused her to submit to a criminal operation, and aided and assisted in procuring an abortion to be produced on her,” from the effects of which she was rendered dangerously ill and continued sick down to the twenty-fifth day of April thereafter, when “ from the effects of said criminal operation and abortion she died;” that from the time of said operation down to her death the said Harriet, by reason thereof, suffered great pain of body and agony of mind, to her loss and damage.

Then follows a statement that she left next of kin who suffered damage by reason of the death in the sum of $20,000; that she died intestate; that letters of administration were duly issued by the surrogate of the county of Lewis, to the plaintiff, who has qualified and is acting as such, and judgment is demanded for $20,000.

To this complaint the defendant demurs upon the ground that it does not state facts sufficient to constitute a cause of action.

The complaint in alleging the promise of marriage, a seduction thereunder and a subsequent breach of the promise, states a cause of action which might have been prosecuted by her had she lived — her cause of action being for the breach, with the seduction a-s an incident, which might be shown in aggravation of damages; but this is not an action ¡that survives and passes to her personal representatives (Wade v. Kalbfleisch, 58 N. Y. 282; Hegerich v. Keddie, 99 id. 258); nor is it aided by the fact that the defendant was guilty of a fraud in making and procuring, and that he had no intent to keep, the marriage promise. Price v. Price, 75 N. Y. 244.

The portion of the complaint, therefore, which remains to be considered is that wherein it is charged that the defendant procured the deceased to “ submit to a criminal -operation, * * * from the effects of” which she subsequently died.

There was no right of action at common law for causing the death of another. Green v. Hudson River R. R. Co., 2 Abb. Ct. App. Dec. 277; Whitford v. Panama R. R. Co., 23 N. Y. 465; Lucas v. N. Y. C. R. R. Co., 21 Barb. 245. The only authority in this State for its maintenance is in the statute:

“ The executor or administrator of a decedent, who has ■left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s death was ■caused, against a natural person who, or a. corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued;” Code Civ. Pro., .§ 1902.

Eliminating from the complaint the allegation as to the marriage promise, does it state a wrongful act, neglect or •default ” of the defendant, causing the death, for which the ■deceased might have maintained an action if living?

She could not have maintained the action as for a seduction. That right belongs to the person — ordinarily the parent, or one standing in loco parentis — who bore to her the relation of master and she to him that of servant. Ad-/ dison on Torts (Banks’ ed.), 1094; White v. Nellis, 31 N. Y. 405; Hamilton v. Lomax, 26 Barb. 615; 25 Am. & Eng. Encyc. of Law (2d ed.), 197; Lawyer v. Fritcher, 130 N. Y. 239, and cases cited; Disler v. McCauley, 66 App. Div. 42. Besides the seduction was not the proximate cause -of death; death resulted from said criminal operation.”

Eor could she have maintained an action for the criminal operation producing the abortion. It is not alleged that the defendant bore such relation to the deceased, by, blood or in law, as gave him special opportunity to coerce or overcome her will, as was held where the seducer was guardian of the female and seduced his ward. Graham v. Wallace, 50 App. Div. 101. They stood on equal ground, except the disparity in years, and the fact, if that be an inequality, that she was a woman and he a man. While he solicited and was guilty of a most serious crime (Penal Code, § 295), she gave assent — participated in the unlawful act. She was so persuaded as, in the language of the complaint, “ to submit.” In that she was herself guilty of a crime (Penal Code, § 295). People v. Meyers, 5 N. Y. Crim. 120; People v. McGonegal, 136 N. Y. 62. This, it seems to me, would have precluded her from maintaining an action for the “ criminal operation,” within the principle that courts will not grant relief'to one who bases his claim upon his own illegal act, or a transaction in which he was an unlawful participant. The authorities are many and uniform. “He who by his pleadings, in any court of justice, avows that he has been engaged with others in an unlawful action, or has concerted with them in an unlawful enterprise, and that in arranging for or carrying it out, he has been unfairly treated by his associates, or has suffered an injustice which they should redress, will be met by the refusal of the court to look any further than his complaint, which it will at once order dismissed.” Cooley Torts, 149.

“ Since the business of the courts is to enforce obedience to the law, they cannot lawfully assist a suitor in any effort to break it.” Bishop Non-Cont. Law, § 54.

“ In just legal principle the true view is believed to be, that where one is seeking the help of the court in doing a wrongful thing, or compensation for having done it, or redress for another’s having participated with him in it, or where in any other manner compliance with his prayer would involve an affirmance of his wrong as though it were a fight, his suit will be rejected, Eor should the court grant what he asks, it would thereby, in effect, join with him in breaking the law which it was established to maintain.” Id., § 59.

“A party cannot be heard to allege his own unlawful act, and if such act be one of a series of facts necessary to support the plaintiff’s claim, then that claim must fail.. The party who seeks redress in a court of justice must come with clean hands; an action which requires, for its support the aid of an illegal act cannot be maintained.” Gregg v. Wyman, 4 Cush. 322.

It is a maxim of the law that: That to which a person assents is not esteemed in law an injury.” Broom Leg. Max., *201. To the same effect is Addison Torts (Banks ed.), 1093; Bartley v. Richtmyer, 4 N. Y. 38, 43; Hilton v. Fonda, 86 id. 339, 352; Travis v. Barger, 24 Barb. 614.

The conclusion results that the plaintiff, as administrator, has no cause of action for the matters set out in the complaint.

Whether in his individual capacity as father, i. e., master, he has a right of action for loss of services, with punitive damages (Lawyer v. Fritcher, 130 N. Y. 239), is not now before the court for decision.

The demurrer must he sustained, with costs.

Demurrer sustained, with costs.  