
    Annie Finkelstein, Respondent, v. Jacob Barnett, Appellant.
    (Supreme Court, Appellate Term,
    July, 1896.)
    1. Jury — Challenges.
    Errors in overruling challenges for cause are immaterial, although the objecting party is thereby caused to exhaust his peremptory challenges, where the trial finally proceeds with a jury, to no one of whom either party objects.
    3. Breach df promise — Evidence.
    In an action for breach of promise of marriage, it is not necessary for the plaintiff to prove that the acquaintance of the parties had ■ ripened into mutual love and affection; it is wholly immaterial whether defendant entertained an amatory regard for her.
    
      8. Same.
    Nor is it necessary to prove that plaintiff suffered anguish of mind, as that is sufficiently apparent from her disappointment at the refusal to marry.
    4. Same.
    Proof ‘that the contract to marry was dependent upon the' deposit with defendant' of a certain sum of money, and that such sum was so deposited, is admissible- as part of the res gestae.
    Appeal from a judgment of the General Term of the City Court of New York, which affirmed a judgment for the plaintiff rendered at Trial Term upon a verdict in her favor.
    Action to recover damages for the defendant’s breach of a contract to marry the plaintiff.
    Alfred Steckler, for respondent.
    Abram Kding, for appellant.
   Bisghoff, J.

The defendant, pending the selection of the jury, exhausted his peremptory challenges after an unavailing challenge for cause in each instance. Thereafter the trial proceeded with a jury to no member whereof either party to this action objected.

Under the circumstances narrated above no error is predicable of the trial court’s rulings upon the' defendant’s challenges for • cause. It was wholly optional with the defendant to avail himself of his right of peremptory challenge, and having by its exercise succeeded in excluding the alleged incompetent persons from sendee as jurors, the error, if such there was, of overruling the challenges for cause was effectually cured. 12 Am. & Eng. Ency. of Law, 366; Friery v. People, 2 Abb. Ct. of App. Dec. 215; People ex rel. Phelps v. Oyer & Terminer, 83 N. Y. 436, 456. The case referred to by the defendant’s counsel (Hildreth v. City of Troy, 101 N. Y. 234) is not to the contrary. There it appeared that a competent person was excluded as a juror upon the plaintiff’s challenge for cause, against the defendant’s objection and exception, and it was held that such exclusion was error to the defendant’s prejudice. . Had the defendant, in the case at bar, refrained from his peremptory challenges, or exhausted them, and an incompetent person been permitted, against the former’s objection and exception, to serve as a juror, the reversal of the judgment would have been imperative. People v. Bodine, 1 Denio, 281, 310.

The trial court properly refused to charge at the request' of the defendant’s counsel that there was no evidence tending to. show that .the acquaintance of the parties to this action had “ ripened into mutual love and affection;” that the plaintiff had failed to testify that “ there was any love between her- and the defendant;” and that there was no evidence tending to show that the plaintiff had " suffered any anguish of mind or humiliation ” in consequence •of the defendant’s refusal to marry her.

The damages to which the plaintiff was entitled for the defendant’s breach of his, contract to intermarry with her were for the injury to her sensibilities, not to those of the defendant. Hence it was wholly immaterial that the defendant may hot have entertained an amatory regard for the plaintiff. Her “ anguish of mind ” was sensibly apparent from her disappointment because of the defendant’s refusal to marry her at the appointed time, after her repeated insistence that the contract to marry should be fulfilled, of which there was abundant evidence.

It appeared from .the plaintiff’s testimony that the contract to intermarry was to become determinate upon her deposit with the defendant. of the sum of $500, and the plaintiff was permitted to' prove, against the defendant’s objection that the ‘.special damages were not alleged in the complaint, that. such de-posit was, in fact, made. The evidence was clearly admissible as a part of the res gestae. The facts of the contract to marry and that the defendant’s promise to marry, the plaintiff became absolute, and that the recovery did not include the sum deposited, is manifest from the trial court’s charge, at the request of the defendant’s counsel, that in computing the damages to be awarded to the plaintiff the jury were not to allow her anything for the. money alluded to. Chesebrough v. Conover, 140 N. Y. 382, 389; Holmes v. Moffat, 120 id. 159, 162.

Other exceptions appear in the record, but were not urged upon this appeal, and upon examination such exceptions prove to -be without merit.

■ The judgments of the General and Trial Terms of the court " below should be affirmed, with costs.''

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  