
    WADE against KALBFLEISCH.
    
      Court of Appeals,
    
    1874.
    Abatement and Revival.—Breach oe Promise of Marriage.—Marriage.
    An action for breach of promise of marriage can not be revived, on the death of a party thereto.
    Such action is not an action “upon contract ” within 3 Rev. Stat, 113, § 3, which provides that “ actions of account, and all other actions upon contract may be maintained by or against executors,” &c.
    It is not founded on the pecuniary loss of support, dower, &c. ; nor is it an action “ for wrongs done to the property, rights or interests n within 3 Rev. Stat., 447, § 1; which provides that for such wrongs, if an action might be maintained against the wrongdoer, it may he brought by the person injured, or, after his death, by his representatives, against the wrongdoer, or, after his death, against his representatives.
    Marriage, while partaking of some of the requirements of a contract, as declared in 3 Rev. Stat., 138, § 1; which declares that “marriage, so far as its validity in law is concerned, shall continue in this State, a civil contract,” &c., is not a contract in the usual meaning of that term, as employed at common law or by statute.
    
    
      Mary F. Wade brought an action in the city court of Brooklyn, against Martin Kalbfleisch, for breach of promise of marriage. Pending suit, the defendant died. A motion on behalf of the plaintiff to revive the action against his executors, was denied at special term, the opinion of Neilsoh, Oh. J. thereat, being reported in 15 Abb. Pr., 16.
    The general term, on an appeal from the order denying the motion, affirmed the same, with costs, February 10, 1874.
    From the order of affirmance, the plaintiff now appeals to the court of appeals.
    
      Erastus Neto, attorney for the plaintiff, appellant.
    
      N. C. Moalc, of counsel.
    I. The cause of action arose and was founded upon contract (McDonald v. Walsh, 5 Abb. Pr., 68; McNeff v. Short, 14 How. Pr., 463; 2 Rev. Stat., 138, ch. 8, tit. 1, art. 1, § 1; 2 Edm.7 144; Clayton v. Wardell, 4 N. Y., 230 ; Siefke v. Tappey, 3 Code R., 23; Mayne on Damages, 2 ed., 375-377 ; James v. Biddington, 6 Car. & P., 590; Wood 
      v. Hurd, 2 Bing. N. C., 166; Kniffen v. McConnell, 30 N. Y., 292; Southard v. Rexford, 6 Cow., 254; Giles v. O’Toole, 4 Barb., 261).
    II. The action survives (Mellen v. Baldwin, 4 Mass., 481 ; Green v. Watkins, 6 Wheat., 260; Macker v. Thomas, 7 Id., 530; Hatch v. Eustis, 1 Call., 162, 163; Jacob Law Dict., tit. Scire Facias; Potter v. Van Vranken, 36 N. Y.. 619 ; Frost v. Knight, 1 Eng. R., 218; L. R. 7 Exch., 111 ; Burtis v. Thompson, 42 N. Y., 246; Haines v. Tucker, 50 N. H., 307 ; Southard v. Rexford, 6 Cow., 254; Stubbs v. Holywell R. Co., L. R. 2 Exch., 311; McKnight v. Dunlop, 5 N. Y, 537; Clarke v. Meigs, 10 Bosw., 338; Christianson v. Sinfard, 19 Abb. Pr., 224 ; Cutler v. Smith, 43 Vt., 577); though founded on tort (2 Rev. Stat., 447; 2 Edm., 467; Haight v. Hoyt, 19 N. Y., 467-8 ; Freid v. N. Y. Central R. R. Co., 25 How. Pr., 286-7; Barnes v. Buck, 1 Lans., 269: Waffle v. Dillenbeck, 39 Barb., 133).
    III. Though a contract be not assignable, a cause of action for its breach may be (2 E. D. Smith, 393; Pearce v. Chamberlain, 2 Ves. Sr., 35; Reeves Dom. Rel. 345; Simar v. Canaday, 53 N. Y, 298).
    IV. The authorities cited by the respondent's coun- • sel, and by the court below, do not show the plaintiff was not entitled to a revivor of the action (Wheatley v. Lane, 1 Saund., 216, a, note 1; Read v. Hatch, 19 Pick., 47 ; Moore v. Jones, 23 Vt., 739). The counsel also referred to the cases considered in the opinion of Church, Ch. J.
    
      W. A. Beach, for the defendant respondent.
    
      
       The legal principle on which this decision rests, might be stated in another form, as follows : The gist of the action for breach of promise of marriage, is not the engagement of marriage, but the wrong done to the affections, reputation and prospects of the defendant, by repudiating her, and casting her off, after having engaged her affections, and given her, upon the faith thereof, a legal right to expect marriage, and a settlement in life. The contract or engagement to marry is essential to the cause of action, but it is matter of inducement, rather than the foundation of the action. In Homan v. Earle (13 APb. Pr. N. S., 402; affirmed in 53 N. Y., 267), the great question was, whether, since parties have been made competent as witnesses, an engagement to marry could be proved by the testimony of the defendant to such an intimacy and such acts and language as indicate that they both intended a mutual engagement and understood that it existed. And the court held that such evidence was sufficient, although there were no express verbal promise to marry. Viewed thus, the case in the text is not inconsistent with other cases which hold that a valid contract of engagement must exist, e. g., Feibel v. Obersky, 13 Abb. Pr. N. S., 402, note, where it was held that an infant is not liable to this action because he is not competent to contract; and Haviland v. Halstead, 34 N. Y., 643, where it was held that the action would not lie, because the contract of engagement was void for incapacity of one of the parties (who had been divorced) to marry again. See also Stein-field v. Levy, p. 26 of this vol.; and Boyce v. People, 55 N. Y., 644.
    
   Church, Ch. J.

The question involved in the order appealed from, is whether an action for a breach of promise of marriage can be revived against the executors or administrators of the promisor. Originally at •common law, all actions abated by the death of a sole plaintiff or defendant, and if the cause of action survived, a new writ was necessary.

This rule has been somewhat modified in England, by statute and judicial decisions (13 N. Y., 333). In this State it is regulated by statute. The Code (§ 131), provides that no action shall abate by the death, marriage,. or other disability of a party . . if the cause of action survives, or continue. 3 Rev. Stat., 113, provides that actions of account, and “ all other actions wpon contract, may be maintained by and against executors in all cases in which the same might have been maintained by or against their respective testators.’ ’ A like provision extends to administrators. It is indispensable, therefore, to determine whether this is an action upon contract, within the meaning of this statute.

The general statute “that marriage, so far as its validity in law is concerned, shall continue in this state a civil contract, to which the consent of parties capable in law of contracting, shall be essential” (3 Rev. Stat., 138), is not decisive of the question. This statute declares it a civil contract, as distinguished from a religious sacrament, and makes the element of consent necessary to its legal validity, but its nature, attributes, and distinguishing features it does not interfere witli nor attempt to define. It is declared a civil contract for certain purposes, but it is not thereby made synonymous with the word contract, employed in the common law or statutes. In this State, and at common law, it may be entered into by persons respectively, of fourteen and twelve. It can not be dissolved by the parties when consummated, nor released with or without consideration. The relation is always regulated by government. It is more than a contract. It requires certain acts of the parties to constitute marriage, independent of and beyond the contract. It partakes more of the character of an institution regulated and controlled by public authority upon principles of public policy for the benefit of the community. Kent says: “It has its foundation in nature, and is the only lawful relation by which providence has permitted the continuance of the race” '(2 Kent Com., 75). Judge Stcby says : “But it appears to me to be something more than a mere contract. It is rather to be deemed an institution of society founded upon the consent and contract of the parties” (Story on Con. of Laws, § 108). He quotes approvingly, a distinguished Scottish judge, to the effect that marriage is “ sui generis, and differing in some respects from all other contracts, so that the rules of law which are applicable in expounding and enforcing other contracts, may not apply to this ” (§ 109). In Ditson v. Ditson (4 R. I, 87, 101), the court say : “In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract which they can make.” It has been held not to be a contract under the provision of the United States constitution prohibiting States from passing laws impairing the obligations of contracts (■5 Barb., 480-6 ; 8 Conn., 540 ; 7 Dana, 181; 4 R. I, 87). Mason, J., in 5 Barb., 480, concludes his opinion by saying that “the marriage relation is not created by what we understand to be a contract in the strict common-law sense of that term.” The marriage relation is essentially personal. Neither the rights, duties, or obligations created by or flowing from it can be transferred, and the action for breach of promise of marriage scarcely resembles in its main features, an action upon contract.

Lamoñt, J.,

in 1 Lans. 268, held that a promise to marry is not a contract within the meaning of the attachment laws. In actions on contract, the damages are limited by a fixed rule, to the pecuniary loss sustained ; while in this the damages are at the discretion of the jury, to the same extent as in strictly personal actions, such as slander, malicious prosecution, assault and battery, and the like, and the recovery may be, and usually is, principally for injured feelings, anxiety of mind, wounded pride, and blighted affections (L. R. 1 C. P., 331 ; 87 E. C. L. R., 659 ; 42 N. Y., 474 ; 45 Maine, 348 ; 8 Barb., 326 ; 15 N. Y., 353).

In actions on contract, the motives for violation are immaterial. In this action, the motives and conduct of the defendant, and other extrinsic circumstances, may be given in evidence, in mitigation or aggravation ; and punitive damages may be recovered (8 Barb., 326), while in actions on contract; they are not allowed (Sedg. on Bam., 226).

So the habits, character and conduct of the plaintiff may be shown in defense or mitigation of damages (5 Abb. Pr. Ñ. 3, 29).

In short, looking at the substance of the action, no court would be justified in holding that it is an action upon contract, within the meaning of the statute referred to.

The learned counsel suggested that, upon a trial against executors or administrators, the personal elements of the action might be eliminated, and a recovery confined to the pecuniary loss, for a support, dower, &c. There is no precedent for such a proceeding, and no principle upon which it could be adopted. For some purposes, where the relation exists, the pecuniary rights of the wife are estimated and protected by the courts. But what would be the rule of pecuniary loss, hypothetically sustained, for support ? Would it be competent to prove the value of the defendant’s property ? Such evidence is admitted, in this action, not to prove the pecuniary loss for support, but to show what the station of the plaintiff in society would have been, which is purely a personal grievance and injury (25 B. O. L. R., 590). The counsel likened it to an employment, for a term of years, at a fixed salary, and contract broken by the employer without cause. If it could be thus transformed, it would be competent to show, in defense, that the plaintiff had an opportunity to contract an equally eligible marriage -with another person, and the plea of the want of affinity or affection would not avail. As to dower, there could be no certainty to base a recovery upon. It would have been competent for the defendant to have disposed of all real estate before marriage, and all personal estate before death. Aside from these considerations, suggested to show the novelty, if not the absurdity of such a trial, the brief answer to this point is, that the action is, from its peculiar nature, indivisible. If revived at all, it must be revived as an entirety. If its personal features are abandoned, the incidents only remain. The circumstances relative to the property and standing of the defendant are admissible upon the question of damages, but they are incidental and subordinate, and so complicated with personal injuries as to render their separation impracticable.

It is also urged that, if this is not an action upon contract, it may be revived under the provision of 2 Rev. Stat., 447, which provides that, “for wrongs done to property-rights or interests,” an action may be maintained by or against executors, &c., except actions for slander, libel, assault and battery, false imprisonment, and actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate. The views before expressed dispose of this point. The wrongs for which this statute authorizes an action to be brought, by or against executors, are such as affect property, or property, rights and interests; or, in other words, such as affect the estate.

The statute is mutual, and actions may be brought not only against, but by executors, &c. Executors represent property only. They can take only such rights of action as affect property, and can not recover for injuries for personal wrongs. If the statute had intended to reach this class of wrongs, we must presume that it would have been so expressed. The general language does not embrace them. Although, in form, this action resembles an action on contract, in substance it falls within the definition of the exception, as an action on the case for personal injuries.

It is unnecessary to classify it. It is properly termed, sui generis. The form of the action is not material. The'controlling consideration is, that it does not relate to property interests, but to personal injuries. In Zabriskie v. Smith (13 N. Y., 322), Dehio, J., in delivering the opinion of the court, specifies this as an action where the damage consists entirely of personal suffering, and can not, therefore, be revived. It is said in 25 How. Pr., 286, that Zabriskie v. Smith was wrongly decided, in consequence of overlooking the statute last referred to. Whether this is so or not, as to the action then involved, the opinion respecting the nature of this action remains unimpaired. The precise point presented in this case has never been determined in this State, although the facts involved must have existed. This furnishes some evidence that the common-law maxim, actio personalis moritur cum persona, is regarded by the profession as applicable to this action, notwithstanding the statutes. No case has been cited, from any source, where any court has permitted a revivor of such an action. On the ■ contrary, every court where the question has been presented, so far as I have examined, has decided adversely (2 Maule & Sel., 408; 1 Pick. (18 Mass.), 71; 4 Cush. (58 Mass.), 408 ; 13 Serg. & Rawle, 183).

These decisions were based upon the nature of the action, and are legitimate authorities upon the question in this State. Our statutes do not weaken their force. Upon precedent, therefore, as well as principle, the order should be affirmed.

All concur, except Rapallo, J., dissenting.  