
    Josephine Disler, Respondent, v. James J. McCauley, Appellant.
    
      Discharge in bankruptcy — ajudgnient for breach of promise of mcm'Hage is covered thereby — a female cannot recover damages for seduction.
    
    A judgment rendered in favor of the plaintiff in an action to recover damages for a breach of promise "of marriage is not, although the plaintiff pleaded and proved in aggravation of the damages that she had been seduced by the defendant, a judgment in an action “for willful and malicious injuries to the'person or property of another,” and is, therefore, within the operation of a discharge in bankruptcy obtained by the defendant.
    
      Semble, that a female who has been seduced cannot maintain, an action to recover ■damages resulting therefrom.
    Appeal by the defendant, James J. McCauley, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of August, 1901, resettling an order entered nr said clerk’s office on tiie 2d day of August, 1901, and denying the defendant’s motion to Cancel and discharge a judgment entered against him in the action l " ■
    
      Robert H. Wilson, for the appellant.
    
      Edward Kaufmann, for the respondent.
   Woodward, J.:

On the 30th day of January, 1900, Josephine Disler recovered a judgment in the - Supreme Court, county of Kings, against James J. McCauley for $3,295.80 for breach of promise of marriage. Subsequently, and in the month of March, 1900, defendant filed a petition in bankruptcy, with schedules of his indebtedness and assets, the schedules of indebtedness showing only four creditors, the plaintiff for the amount of her judgment, and- three others aggregating $60. The defendant was adjudged a bankrupt, and procured a stay of execution from the United States District Court for the eastern district of New York of the judgment above mentioned. The plaintiff moved to vacate the stay, which motion was denied, and no appeal has been taken from the order denying the motion. " In June, 1900, the bankrupt applied for his discharge, and was discharged without opposition, the plaintiff never having received notice of such application for discharge. In or about the ■month of July, 1901, the plaintiff obtained an order for the examination of the judgment debtor in supplementary proceedings, which was duly served on the defendant, such order being returnable on July 15, 1901. The defendant moved by an order to show cause, returnable at the same time and place as said order for examination in supplementary proceedings, for the cancellation and discharge of the judgment for $3,295.80 as aforesaid, and this appeal is from the order denying defendant’s motion to so cancel said judgment.

Section 1268 of the Code of Civil Procedure provides that “ If it appears upon the hearing that he (the judgment debtor) has been discharged from the payment of that judgment or the debt upon which such judgment was recovered, an order must be made directing said judgment be cancelled and discharged of record,” and as no question of the sufficiency of the moving papers is suggested, it was the duty of the court at Special Term to make the order asked for, unless the plaintiff’s judgment comes within the provisions enumerated in section 17 of the Bankruptcy Law (30 U. S. Stat. at Large 550) which provides as follows : “ A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as are judgments in actions for frauds or obtaining property by false pretenses or false representations or for willful and malicious injuries to the person or property of another.”

The plaintiff contends, and the learned court at Special Term adopts the theory, that the action upon which the judgment was recovered was not founded upon a contract merely, but was based upon a breach of contract of marriage, coupled with seduction ; that the seduction was pleaded in the complaint and proved upon the trial, and was " as much the foundation of the damages as the breach of promise of marriage.”. It is probably true, at least in a measure, that the amount of damages was predicated upon the seduction, but the right of action rests wholly upon the contract of marriage and its breach. The exception in the statute is of “ judgments in actions for frauds or obtaining property by false pretenses or false representations or for willful and malicious injuries to the person or property of another,” and the fact that the accompanying seduction operated to increase the damages which naturally attach to a breach of contract of marriage, has nothing to do with the character of the action. The law has reduced itself to the maxim that “ that to which a person assents'is not esteemed in law an injury ” (Broom Leg. Max. [2d ed.] 193; Bartley v. Richtmyer, 4 N. Y. 38,43), and as seduction presupposes the consent of the person seduced, no right of action accrues to the plaintiff in this action by reason of her seduction. Nor did the common law recognize seduction as an injury to the person seduced in giving a right of action to. the father, but the -whole theory of the law was that, as the father was entitled to" the services of his daughter, the act of the seducer, unfitting her by reason of her pregnancy or other resulting injuries, for performing these services, was an injury to the father or master, for which he might recover.“This action,” say the court in White v. Nellis (31 N. Y. 405, 407), “ is not maintainable upon the relation of parent and child, but solely upon that of master and servant,” and this" doctrine is recognized in a long line of cases. (See Lawyer v. Fritcher, 130 N. Y. 239, and authorities cited.) So in the criminal aspects of the question seduction was not a crime at common law, but was made so by chapter 111 of the Laws of 1848, which has since been re-enacted in section 284 of the Penal Code. It does not punish seduction generally, but only when it is committed under promise of marriage, upon an unmarried woman of “ previous chaste character.” (People v. Nelson, 153 N. Y. 90, 96.) The policy of the law is not to recognize seduction as a crime against the person of the female, unless it is brought about by a promise of marriage, and the seduction must be of an unmarried woman, who must be of “previous chaste character,” which has been construed to mean actual personal virtue. (People v. Nelson, supra.) The statutory crime is rather in the promise of marriage given under the circumstances, which is the moving cause of the consent of the female, than in the seduction, and moves upon the theory of a fraudulent procurement of the consent.

The plaintiff, having no cause of action for the seduction, to which she consented, cannot make that fact a substantive part of her cause of action. It was proper to plead the seduction as an element of damages, for it cannot be questioned that a young woman who has surrendered her person to a man, and who is pregnant by him, is in a position to suffer a larger measure of damages than one who is merely disappointed in her expectations of married happiness, with no loss of standing in the community, but it makes no part of her cause of action. It is the breach of the contract of marriage which gives the plaintiff a right of action, and the consequences directly flowing from the breach of that contract constitute the measure of damages, and among the elements of the damages it was proper for the jury to consider the sacrifices which the plaintiff had made, relying upon the consummation of the promise of marriage. But this does not bring the plaintiff’s cause of action within the exceptions mentioned in the Bankruptcy Law, and while in this particular case it may be questioned if the ends of justice are subserved, we discover no reason in law why the order canceling the judgment should not have been granted. The seduction of the plaintiff, in the absence of a breach of the contract under which the result was accomplished, did not constitute a tort as against the plaintiff, and it was only judgments in actions for frauds * * * or for willful and malicious injuries to the person or property of another,” that are excepted from the operation of the Bankruptcy Law. This language is very strong; it refers, not to the ordinary results of negligence, but to willful and malicious injuries to the person,” and it is very difficult to conceive of a willful and malicious injury to one who has consented to the act. We are of opinion that, while the Legislature, with the particular circumstances of this case before it, would be willing to extend the exception to cases of this character, there is an entire absence of language which would justify the construction put upon the statute by the plaintiff, and that the order appealed from should be , reversed.

The order appealed from should be reversed, without costs, and motion granted, without costs.

Goodrich, P. J., Bartlett, Hirschberg and Jenks, JJ., concurred.

Order reversed, without costs, and motion granted, without costs.  