
    (4 Misc. Rep. 389.)
    ALDIS v. STEWART.
    (Superior Court of New York City, General Term.
    July 3, 1893.)
    Breach or Marriage Promise—Deeendaet’s Financial Conditio».
    In an action for breach of marriage promise it is error to admit evidence as to the property possessed by defendant’s mother.
    Appeal from jury term.
    Action by Leonora Aldis against George Stewart for breach of promise of marriage. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Reversed.
    Argued before FREEDMAH and GILDERSLEEVE, JJ.
    
      C. E. Lydecker, for appellant.
    C. A. Flammer, for respondent
   FREEDMAK, J.

The action was brought by plaintiff to recover damages from defendant for breach of promise to marry. At the trial sufficient evidence was given by the plaintiff to call for the submission of the case to the jury. Among other things, evidence was admitted to the effect that the mother of the defendant was possessed of property and of real estate. The evidence was objected to by defendant as incompetent, irrelevant, and immaterial. The objection was overruled, the evidence admitted, and defendant duly excepted. The question as to the admissibility of evidence of this character in an action for breach of promise to marry was considered by the supreme court of Michigan on a writ of error to the Kalamazoo circuit in Miller v. Rosier, 31 Mich. 475. The assignment of error was that the plaintiff was allowed to show the value of the farm belonging to the defendant’s father as something the jury might consider in estimating damages. The ground on which it was claimed that this evidence was admissible was that from other evidence it had been shown that defendant had made statements to plaintiff that his property was invested- in this farm. But Judge Cooley, in writing the opinion of the court for reversal, said:

“Haw much was thus invested he did not state; nor was there any evidence tending to show that he then had any legal interest whatever in the farm, or, if he had, that it was anything more than nominal. We think the court correctly held that evidence of defendant’s pecuniary circumstances might be put in by the plaintiff, but this evidence only went to show the father's circumstances, which were wholly immaterial to the case on trial."

And in Totten v. Read, (Com. Pl. N. Y.) 10 N. Y. Supp. 318, the general term of the court of common pleas reversed the judgment because the plaintiff had been allowed to give evidence of defendant’s declarations that he was the only heir of his uncle, who would leave him a large estate. Under these decisions the admission in the case at bar of the evidence as to the property of the mother constituted error, and the error was of a substantial character. The case is entirely devoid of any sensational feature, and, aside from defendant’s refusal to redeem his promise of marriage, the conduct of the defendant was, according to plaintiff’s own testimony, that of a gentleman. The plaintiff never earned but a small compensation, and the defendant was and is worth practically nothing in a pecuniary point of view. Under these circumstances, the verdict of the jury, which was for the sum of $5,600, may be presumed to have been largely influenced by the fact that the plaintiff was permitted to prove that defendant’s mother owned property and real estate. The error could only be disregarded if it could be seen that the evidence illegally admitted did no harm. Jefferson v. Railroad Co., 132 N. Y. 483, 30 N. E. Rep. 981. The burden of demonstrating that the illegal admission of the evidence did no harm is on the plaintiff, and this she failed to do. As long as the evidence may have affected the verdict, the general rule is that the error in its reception will not be cured by a direction to the jury to disregard it. Erben v. Lorillard, 19 N. Y. 299; O’Sullivan v. Roberts, 39 N. Y. Super. Ct. R. 360; Newman v. Goddard, 3 Hun, 70; Allen v. James, 7 Daly, 13; Tabor v. Van Tassell, 86 N. Y. 642. It is only where the evidence erroneously admitted is expressly withdrawn from the ■consideration of the jury, and the jury is specifically and unqualifiedly instructed to disregard it, and there is other evidence suffi■cient to support the verdict, that it may be presumed that the instruction to the jury was complied With, and that the error was ■cured. Holmes v. Moffat, 120 N. Y. 159, 24 N. E. Rep. 275. In the •case at bar there was no such specific and unqualified instruction to disregard. On the contrary, the trial judge refused to instruct ■the jury to disregard the evidence altogether, and charged that the the circumstances of the mother of the defendant might be considered as showing what the condition and station of the defendant in society might be. Moreover, it is quite doubtful whether there is other evidence sufficient to support the amount of the verdict. The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event.  