
    Josephine Disler, Plaintiff, v. James J. McCauley, Defendant.
    (Supreme Court, Kings Special Term,
    July, 1901.)
    Bankruptcy — Does not release a judgment for breach of promise of marriage, including a claim for seduction under the promise — Code C. P., § 1268.
    A discharge in bankruptcy does not release a judgment for $3,000 recorded against the bankrupt for breach of promise of marriage where the complaint in that action also alleged seduction under such promise and there was proof that the plaintiff therein had a child, as it may fairly be assumed that a part of the damages were given for the seduction, and seduction is a willful injury to the person, within the clause of the Act of 1898 (chap. 3, § 17), excepting- from release judgments recovered “ for willful and malicious injuries to the person or property of another.”
    Motion for the cancelling and discharge of record of a judgment.
    Davis & Kaufmann, for plaintiff.
    Burr, Coombs & Wilson, for defendant.
   Dickey, J.

This is a motion for the cancelling and discharge of record of a judgment. The motion is made under section 1268 of the Code of Civil Procedure, which provides if it appears upon the hearing that a bankrupt has been discharged from the payment of the judgment, an order must he made directing said judgment to be cancelled and discharged- of record.

The Bankrupt Law, section 11, provides “ A discharge in bankruptcy shall release a bankrupt from all of his provable debts except such as * * * (2) are judgments in actions for frauds or obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another.”

While in form and in name this action was one for breach of promise to marry, the complaint properly included an allegation of seductioh under promise of marriage. Proof was given of the seduction and birth of a child, and damages were given in the sum of $3,000. It may fairly be assumed that at least a part.of these damages included in the judgment herein grew out of and were given because of the injury to the person covered by the seduction part of the complaint. This being so, can it be said that the judgment and no part of it is one for willful injury to the person %

The action for breach of contract to marry is not like any other action for breach of contract, and is not to be classed with the ordinary action for breach of contract, because the law permits recovery, in an action for breach of contract to marry, for damages done to the person peculiar to that breach of contract and not common to other breaches of contract — exemplary or punitive damages. So breach of contract of marriage cases, including as they may a tort to the person, may well he classed and included among actions for willful injury to the person.

To my mind Congress never intended to discharge bankrupts from liability for damages such as are included in this' judgment. The purpose of the bankrupt act was to relieve failing honest debtors from their money obligations, and not to free tortious debtors from liability for their wrongs. In our Code of Civil Procedure, section 3343, subdivision 9, seduction is expressly named as among personal injuries. While our statutes do not give a right of action directly, as some other States do, to the injured female for seduction alone, yet there is the right in connection with the breach of promise to marry to plead and prove that there was a seduction, and this element permits and calls for an enhancement of damages beyond the damages only for a breach of promise to marry; and any judgment in such a case necessarily includes within it damages for the personal wrong. So much of the judgment for the personal wrong is not any less such a judgment because the action by general designation is called one for breach of promise to marry.

The spirit of the Bankruptcy Law is to govern. This bankruptcy proceeding was evidently taken to discharge this very judgment, because the bankrupt owed practically nothing besides. There would be little use in bringing actions of this character if the judgment obtained might be speedily discharged hy going through the form of bankruptcy proceedings. This sh.ould not be encouraged.

Motion denied, with ten dollars costs.  