
    Cora Maude Clarke, Respondent, v. John Leon Martin, Appellant.
    First Department,
    December 31, 1914.
    Husband and wife — action for breach of promise to marry — evidence — erroneous charge.
    Where, in an action for a breach of promise to marry, the defendant in his answer admits his marriage to another and pleads a general denial, and when called as a witness admits the promise, but testifies that it had been mutually rescinded and abandoned, which evidence was received without objection and was not struck out, it is error for the court to charge that the only question for the jury is one of damages, although defendant’s testimony may not have been admissible under the answer. Scott, J., dissented.
    Appeal by the defendant, John Leon Martin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of November, 1913, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 22d day of January, 1914, denying the defendant’s motion for a new trial made upon the minutes.
    
      Alton B. Parker, for the appellant.
    
      Aaron P. Jetmore, for the respondent.
   Hotchkiss, J.:

The action was for a breach of promise to marry. The answer, save for admission that defendant had in fact married another, was in substance a general denial. When called as a witness defendant admitted a promise to marry plaintiff, but testified to facts from which the jury would have been justified in finding that any engagement arising from such promise had been mutually rescinded and abandoned. This evidence was admitted without objection and was not struck out. The learned court charged the jury that, inasmuch as the defendant had failed in his answer to set up matter in confession and avoidance of the promise, which promise he had admitted, the only question for the jury was one of damages. To this exception was duly taken. I think the charge was wrong. It is immaterial whether defendant’s testimony was or was not admissible under the answer if it bore on a material feature of plaintiff’s cause of actibn and was a part of the record when the case was submitted to the jury. In this situation it was the duty of the trial court to give defendant the benefit of the testimony without regard for any defect in the answer. This principle is applicable to trials in actions at law (Collins v. Butler, 179 N. Y. 156; Eastwood v. Retsof Mining Co., 86 Hun, 91; affd., 152 N. Y. 651; Barcus v. Dorries, 64 App. Div. 109, 112) as well as to those in equity. (Baily v. Hornthal, 154 N. Y. 648.)

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., concurred; Scott, J., dissented.

Laughlin, J. (concurring):

The breach of the promise to marry was put in issue by the answer. It was incumbent, therefore, on the plaintiff to prove the breach and it was competent for defendant to show that there was no breach of the promise on his part by showing that the plaintiff agreed that he need not perform. That, in effect, was the nature of the testimony given by defendant and received without objection. It was error to preclude consideration of that testimony by the jury, not only on the ground that it was received without objection, but on the ground that it was within the issues as presented by the pleadings.

Dowling, J., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  