
    Edwin S. Lowe, Appellant, v. Jayne D. Quinn, Respondent.
    Argued November 10, 1970;
    decided January 14, 1971.
    
      
      Philip Gelfand for appellant.
    
      
      Patrick M. Wall and Edward Bennett Williams for respondent.
   Chief Judge Fuld.

The plaintiff, a married man, sues for the return of a diamond engagement ” ring which he gave the defendant in October of 1968 upon her promise to wed him when and if he became free; he had been living apart from his wife for several years and they contemplated a divorce. About a month after receiving the ring, the defendant told the plaintiff that she had ‘‘second thoughts ’ ’ about the matter and had decided against getting married. When he requested the return of the ring, she suggested that he “ talk to [her] lawyer ”. Convinced of the futility of further discussion, he brought this action to recover the ring or, in the alternative, the sum of $60,000, its asserted value.

Following a motion by the defendant for summary judgment dismissing the complaint and a cross motion by the plaintiff to amend Ms complaint ‘ ‘ to include causes of action for fraud, unjust enrichment and monies" had and received,” the court at Special Term denied the defendant’s application and granted the plaintiff’s. The Appellate Division reversed and granted the defendant’s motion, directing summary judgment against the plaintiff.

An engagement .ring “is in the nature of a pledge for the contract of marriage ” (Beck v. Cohen, 237 App. Div. 729, 730) and, under the common law, it was settled—at least in a case where no impediment existed to a marriage — that, if the recipient broke the “ engagement,” she was required, upon demand, to return the ring on the theory that it constituted a conditional gift. (See, e.g., Wilson v. Riggs, 267 N. Y. 570, affg. 243 App. Div. 33; Beck v. Cohen, 237 App. Div. 729, supra; Goldstein v. Rosenthal, 56 Misc 2d 311; Jacobs v. Davis [1917], 2 K.B. 532; see, also, Note, 24 ALR 2d 579.) However, a different result is compelled where, as here, one of the parties is married. An agreement to marry under such circumstances is void as against public policy (see, e.g., Haviland v. Halstead, 34 N. Y. 643; Williams v. Igel, 62 Misc. 354; Davis v. Pryor, 112 F. 274), and it is not saved or rendered valid by the fact that the married individual contemplated divorce and that the agreement was conditioned on procurement of the divorce. (See, e.g., Smith v. McPherson, 176 Cal. 144; Leupert v. Shields, 14 Col. App. 404; Noice v. Brown, 38 N. J. L. 228; see, also, 49 Harv. L. Rev. 648.) Based on such reasoning, the few courts which have had occasion to consider the question have held that a plaintiff may not recover the engagement ring or any other property he may have given the woman. (See Malasarte v. Keye, 13 Alaska 407, 412; Morgan v. Wright, 219 Q-a. 385; Armitage v. Hogan, 25 Wn. 2d 672.) Thus, in Armitage v. Hogan (25 Wn. 2d 672, supra), which is quite similar to the present case, the high court of the State of Washington declared (pp. 683, 685):

" * * * if it be admitted for the sake of argument that [defendant] respondent did agree to marry [plaintiff] appellant, and that the ring was purchased * * * in consideration of such promise, such agreement would be illegal and void, as appellant was, at that time, and in fact has at all times since been, a married man. [p. 683]
* * *
‘‘Regardless of the fact that appellant states this action is based on fraud and deceit, we are of the opinion that, under the facts in the case, appellant’s claimed cause of action is based upon an illegal and an immoral transaction, and that this court should not lend its aid in furthering such transaction, [p. 685] ”.

There are cases, it is true, which refuse to apply the doctrine of " unclean hands ”—invoiced by the courts in the cited decisions—when the conduct relied upon is not " directly related to the subject matter in litigation ” (Weiss v. Mayflower Doughnut Corp., 1 N Y 2d 310, 316; see, also, National Distillers Corp. v. Seyopp Corp., 17 N Y 2d 12, 15-16; Furman v. Krauss, 175 Misc. 1018, affd. 262 App. Div. 1016, mot. for lv. to app. den. 287 N. Y. 852; Brooks v. Martin, 2 Wall [69 U. S.] 70; 2 Pomeroy, Equity Jurisprudence [5th ed., 1941], § 399, pp. 97-99) but it is difficult to see how the delivery of the ring or the action to procure its return may be deemed unrelated to the contract to marry. There can be no possible doubt that the gift of the engagement ring was part and parcel of, directly related to, the agreement to wed.

Nor does section 80-b of the Civil Rights Law create a cause of action. That provision, enacted in 1965, recites in part that "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 ’ ’. That section must, however, be read in connection with section 80-a which effected the abolition of actions for breach of promise to marry. Section 80-b was added to overcome decisions such as Josephson v. Dry Dock Sav. Inst. (292 N. Y. 666), in order to make it clear that a man not under any impediment to marry was entitled to the return of articles which he gave the woman, even though breach of promise suits had been abolished as against public policy. (See, e.g., Goldstein v. Rosenthal, 56 Misc 2d 311, 314, supra.) This statute, however, does not alter the settled principle denying a right of recovery where either of the parties to the proposed marriage is already married.

The order appealed from should he affirmed, with costs.

Scileppi, J. (dissenting).

I dissent and vote to reverse. Plaintiff, a married man, seeks the return of an engagement ring, valued at some $60,000, which he gave defendant pursuant to her promise to marry him upon the dissolution of his prior marriage. The record indicates that the plaintiff had been living apart from his wife for several years and that both had previously agreed there should be a divorce. Plaintiff maintains that his estranged wife had actually retained an attorney; in his own words, the marriage was "as dead as a door nail.’’

On November 14, 1968, about one month after alleged gift of the ring, the defendant informed her suitor of a “ change of heart ” and her intention not to go through with the contemplated marriage. Hurried efforts at tender persuasion ” having proved futile, plaintiff requested the return of the ring. Defendant promptly suggested that he speak to her lawyer. Whereupon, plaintiff commenced the instant action seeking recovery of the ring or, in the alternative, the sum of $60,000.

Following the interposition of her answer, defendant moved for summary judgment dismissing the complaint. The plaintiff resisted that motion, claiming that neither he nor the defendant had done anything to break up [the former] marriage, and cross-moved to amend his complaint to include causes of action for fraud, unjust enrichment and monies had and received”. In support of that cross motion, plaintiff asserted that defendant had “ manuvered [him] into a position of giving her [the] engagment ring, ’ with the thought that she would eventually keep it without marrying me.”

The court at Special Term, New York County, denied defendant’s motion for summary judgment and granted plaintiff’s cross motion to amend the complaint. On appeal, the Appellate Division reversed, one Justice dissenting, and granted defendant’s motion for summary judgment dismissing the complaint.

We are called upon to determine whether a married man, awaiting the dissolution of a prior marriage, may maintain an action to recover an engagement ring given in contemplation of a subsequent marriage to one fully aware of his present incapacity to contract a second marriage. The majority, by its decision herein, would answer the question in the negative. I firmly disagree and would reinstate the order of Special Term denying summary judgment.

Insofar as the case involves the right of a man, already married, to secure the return of an engagement ring from a woman whom he agreed to marry, the case is one of first impression in this State. Although the specific question may be novel, well-established principles of law guide our efforts to secure a just result. Justice, however, is cognizant of more than merely the equities subsisting between particular litigants. Indeed, it contemplates that general social interests be preserved and implemented. What seems totally unjust when limited to individual litigants may well assume an entirely different perspective when viewed from the vantage of social interests at large. The ideal, therefore, is to accommodate both, that is, to forsake equity in a particular case only when to accord it recognition would be to do violence to the recognized public policy of this State. That, it would seem, is what the majority attempts to accomplish by its decision here. Any other conclusion would require that the majority’s action be construed as precluding all suits to recover property transferred solely in consideration of a contemplated marriage which eventually fails to occur. This is obviously in direct contravention of section 80-b of the Civil Rights Law (L. 1965, ch. 333, § 2), which provides that nothing in the statute shall be construed to bar a right of action to recover property transferred solely in consideration of a contemplated marriage, and is clearly not the predicate of the court’s action today. By affirming, herein, the majority would seem to recognize that a different result is compelled where one of the parties is married, regardless of the fact that the donee, fully aware of former’s marital status is unjustly enriched. Not even our once compelling interest in the preservation of the family would warrant such an unconscionable result; especially where as here, plaintiff’s right to the ring neither advances nor impedes the policy of this State favoring the preservation of marriages. To hold that the plaintiff is not entitled to maintain an action to recover the ring, therefore, irrespective of whether any legitimate policy of this State would in fact be vindicated, would be to chastize him for what amounts, at most, to a personal indiscretion and I know of no semblance of authority which admits of such a function.

Likewise, assuming that the majority’s action today is predicated upon public policy considerations, I think it well to note that the majority overlooks the legislative policy of this State, as expressed in section 80-a of the Civil Bights Law, which seeks, by barring “breach of promise suits ”, to protect against the high incidence of unjust enrichment, often the product of feminine wiles (see Goldstein v. Rosenthal, 56 Misc 2d 311).

Section 80-b of the Civil Bights law, relating to gifts for contemplation of marriage, reflects a similar concern. While this court has yet to construe that provision, it seems apparent that section 80-b, upon which the plaintiff, in part, relies, does not create a new cause of action (Goldstein v. Rosenthal, supra), but merely removes the impediment which, for a time, had prevented a man from suing for the return of a ring which he allegedly delivered to a defendant as a pledge or token of a mutual agreement to marry (see, e.g., Josephson v. Dry Dock Sav. Inst., 292 N. Y. 666). Generally, an engagement ring “ is in the nature of a pledge for the contract of marriage ” (Beck v. Cohen, 237 App. Div. 729, 730) and, under the common law it was settled that where the donee broke the engagement she was required, upon demand, to return the ring to her suitor on the theory that it constituted a conditional gift (see, e.g., Wilson v. Riggs, 267 N. Y. 570, affg. 243 App. Div. 33; Beck v. Cohen, supra; Goldstein v. Rosenthal, supra).

It is true that a contract to marry where one of the parties is already married is void as against public policy (Haviland v. Halstead, 34 N. Y. 643, 645) and the courts rightfully will not aid either of the parties to such a transaction. Such, however, is not the present case. As Justice Timer noted below ‘‘While the plaintiff’s contract to marry may be contrary to public policy, his conduct in that regard is unrelated to the subject of the present litigation, the restitution of property given on a condition which the defendant was unwilling to fulfill ” (32 A D 2d 269, 272, dissenting opn.). He seeks neither to enforce such a contract or to obtain damages for its breach; but merely asks to recover from the defendant a gift conditioned upon their ultimate marriage.

Moreover, plaintiff’s cause of action in restitution is not barred by the doctrine of ‘ ‘ unclean hands, ’ ’ as that doctrine has been limited to misconduct which relates to the very subject matter of the present litigation. It does not obtain merely because the present controversy grew out of a separate illegal transaction. The party asserting the defense must have been injured by the wrongful conduct of the other in connection with the very matter about which the complaint is made. As we held in National Distillers Corp. v. Seyopp Corp. “ [The doctrine of unclean hands] is never used unless the plaintiff is guilty of immoral, unconscionable conduct and even then only ‘ when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct * * *'" (17 N Y 2d 12, 15-16; see, also, Weiss v. Mayflower Doughnut Corp., 1 N Y 2d 310, 316; see, also, Furman v. Krauss, 287 N. Y. 852, denying mot. for lv. to app., 262 App. Div. 1016, affg. 175 Misc. 1018; Brooks v. Martin, 2 Wall [69 U. S.] 70; 2 Pomeroy, Equity Jurisprudence [5th ed., 1941], § 399, pp. 97-99).

In the present case, the plaintiff’s action in restitution was not brought to enforce an illegal contract or to further an illegal relation. The agreement to marry was at an end and the action simply attempts to prevent the defendant’s unjust enrichment. The illegal contract to marry relates only indirectly and remotely to the relief sought, it is a thing of the past and is collateral. The plaintiff vis-a-vis the defendant is guilty of no wrongdoing; he simply seeks the return of what is rightfully his. The court would not be sanctioning the illegal act of a married man in becoming engaged to a third party. That engagment is at an end and the return of the ring would in no way revive or foster the former plan. Indeed, it only points the ,way to the restoration of the status quo ante. As it stands, by allowing the defendant to retain the ring the court is placing its imprimatur upon her unjust conduct in retaining the ring or even, subject to the plaintiff’s proof—of her unconscionable act of inducing the gift without dny intention of consummating the marriage. In so doing, it is sanctioning the use of an equitable doctrine, ‘ ‘ where * * * the consequences of its application would be to produce a result which is contrary to good conscience and public policy and would to a greater extent offend them.” (Furman v. Krauss, 175 Misc., supra, at p. 1021.)

Accordingly, I would reverse and reinstate the order of Special Term.

Judges Burke, Breitel and Gibson concur with Chief Judge Fuld; Judge Scileppi dissents and votes to reverse in a separate opinion in which Judges Bergan and Jasen concur.

Order affirmed.  