
    Clara Totten, Resp’t, v. Cassius H. Read, App’lt.
    
      (New York Common Pleas, General Term
    
    
      Filed June 2, 1890.)
    
    1. Breach of promise — Evidence.
    In an action for breach of promise of marriage plaintiff was allowed to testify to declarations of defendant that he was the only heir of his uncle, who would leave a large estate to him. Neld. that such evidence was immaterial and its reception substantial error, as it could not be said that it did not materially increase the amount of the verdict.
    2. Same.
    Testimony of plaintiff that she “heard that he was a very rich man’” did not necessarily tend to show defendant’s general reputation for wealth, and it is error to refuse to strike out such testimony.
    Appeal from judgment in favor of plaintiff for $15,695.69,. damages and costs for an alleged breach by defendant of a promise of marriage.
    
      Eseh Gowen, for app’lt; A. W. Tenney, for resp’t.
   Larremore, Ch. J.

This is an action for breach of promise to marry. The first ground upon which the distinguished counsel for appellant asks us to reverse the judgment in plaintiff’s favor is that the weight of evidence to support the second promise upon which she now relies, is strongly in favor of defendant. But I cannot subscribe to this view. It is true that this agreement of September 22, 1884, rests substantially on the testimony of plaintiff herself. But if her personal motive for so testifying is very obvious, that of the witnesses who contradict her is equally apparent. The latter consist of defendant and persons closely affiliated to him. Plaintiff’s ground of recovery on this second cause of action is that the new promise, made on September 22d, constituted the consideration for the release of the then existing claim. The form of release would seem to bear out this contention. The consideration therein named is “ one dollar and other valuable consideration.” It is not at all likely that plaintiff, after making a demand based upon such serious grounds as she alleged for her first cause of action, would without some strong motive surrender all her rights. Unless she relied upon such new promise it is difficult to discover what the consideration moving to her was. Counsel for appellant contends that it was the $1,200' paid to her mother. But Mrs. Cocks also had a suit pending against defendant with others, growing out of the general facts-set up in plaintiff’s suit, and such payment was the consideration for a general release from the mother, executed simultaneously with plaintiff’s release. This money was paid with considerable ceremony, after having been formally counted by the notary in her presence, to Mrs. Cocks, personally. It is argued that such payment must have in reality enured to plaintiff’s benefit, and been in effect a consideration for her release, because Mrs. Cocks’ claim was groundless in law. nevertheless Mrs. Cocks had brought a suit for it which she discontinued; and whether or not she could have been successful is immaterial, if defendant chose to pay her something to have the litigation dropped. It is alleged that Mrs. Cocks had spent considerable money in prosecuting such suit, and would not consent to its discontinuance without being compensated for her actual outlay. Certainly there is nothing grossly improbable in the jury’s finding that a new engagement was entered into on September 22, 1884, at which time "all old scores between all parties were wiped out.

The trial judge did not err in the admission of the declarations of the witness Peshall. It appears that he was defendant’s confidential friend and general go-between in his relations with plaintiff, arranging interviews and carrying messages and letters back and forth. There is no good reason why the ordinary principle of agency on this subject should not apply.

Objection was also made to testimony tending to show defendant’s financial circumstances. It is well settled that evidence of this character is material in actions for breach of promise, as it tends to show what the plaintiff has lost in the way of maintenance, support and position by defendant’s refusal to fullfil the engagement. Kniffen v. McConnell, 30 N. Y., 285; Lawrence v. Cooke, 56 Maine, 187 ; Miller v. Rosier, 31 Mich., 475 ; Bennett v. Beam, 42 id., 346 ; Watson v. Watson, 53 id., 168; Kelley v. Riley, 106 Mass., 339.

Revertheless, the plaintiff was allowed to testify as to alleged declarations of defendant to the effect that he was the only heir of his uncle who would leave a large estate to him. This evidence was clearly immaterial, and we cannot say that it did not materially increase the amount of the verdict rendered.

In Miller v. Rosier, supra, one of the reasons for reversal was that plaintiff had been allowed to show the value of a farm owned by defendant’s father. The ground upon which this evidence had been allowed was that the defendant hr, d made statements to plaintiff that his property was invested in the farm. But even under such circumstances, which rendered the argument for the admissibility of the evidence a much stronger one than can be advanced in the case at bar, the supreme court Of Michigan held, Judge Cooley writing the opinion, that this evidence “ only went to show the father’s circumstances, which were wholly immaterial to the case on trial.” Evidence of the pecuniary resources of an uncle to whose estate the defendant is not shown to have added anything, and who is, moreover, legally entitled to devise and bequeath his estate to any person other than defendant, is even more irrelevant; and its reception was substantial error.

We think it was also erroneous, under the pretence of proving defendant’s general reputation for wealth, to allow plaintiff’s answer to stand: “I heard that he was a very rich man.” I cannot see that this tends to establish general reputation. She may have “ heard ” it only once from a single person. This should have been stricken out on defendant’s motion ; as the record stands it is the baldest “hearsay.”

In. my opinion, declarations of the defendant himself as to-specific property, real and personal, he owned or had purchased, would be admissible. They would come in under the general rule admitting a party’s own statements against him which tend, to prove a material fact. I do not understand that the intimation in Kniffen v. McConnell, supra, at page 288, that evidence of this kind might be objectionable, was intended to apply to a case where it was confined to defendant’s admissions.

Nevertheless, for the errors above pointed out, a new trial must be had. The irrelevant evidence was obviously introduced solely to increase the damages, and the verdict is sufficiently large to make it seem probable tho¡t it was an influential factor in the result.

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

Bookstaver, J.

As the judgment in this action must be reversed on the grounds hereinafter stated and a new trial had, I prefer to express no opinion on the reasonableness of plaintiff’s position or whether or not it is sustained by the weight of evidence; nor do I express any opinion as to the motives which may have induced her to execute the release of the first cause of action set up in the complaint Neither am I clear that the witness Peshall was the agent of the defendant in such a sense as to allow his declaration to be received in evidence The testimony on all these points may be greatly varied on another trial and 1 consider it premature to discuss it now.

But I fully concur with the learned chief judge that it was error to allow plaintiff’s evidence of defendant’s declarations that he was-the only heir of his uncle who would leave him a large estate, for the reasons stated in his opinion. I also concur with him, and for the reasons 'he states, that it was error not to strike out plaintiff’s-reply to a question that “ I (plaintiff meaning) heard that he was-a very rich man.” And on these grounds I concur in the opinion that the judgment should be reversed and a new trial had, with costs to abide the event  