Burger v. Neumann

• Decision Date: 21 October 1949
• Citation: 300 N.Y. 495,88 N.E.2d 724
• Parties: Katherine BURGER, Respondent, v. Philip NEUMANN, Appellant.
• Court: New York Court of Appeals Court of Appeals

300 N.Y. 495

88 N.E.2d 724

Katherine BURGER, Respondent,

v.Philip NEUMANN, Appellant.

Court of Appeals of New York.

Oct. 21, 1949.

Appeal from Supreme Court, Appellate Division, Second Department, 275 App.Div. 710, 86 N.Y.S.2d 871.

Action by Katherine Burger against Philip Neumann to recover from defendant, as putative father of a child born out of wedlock, sums which defendant, by alleged oral contract, had promised to pay for and in consideration of care and support of such child.

The complaint alleged among other things a background of friendship between the plaintiff and defendant, that the plaintiff was employed by the defendant, that defendant compelled plaintiff to have relations with him, that he professed his love for her, and also that he told her it was his intention to marry her, but did not allege any breach of promise to marry on the part of the defendant.

The plaintiff also alleged that the defendant acknowledged the paternity of plaintiff's child and in consideration of certain promises made by the plaintiff, agreed among other things to make certain financial provisions for the plaintiff and her child and to support the child until he reached the age of 21 years.

The defendant moved to dismiss the complaint upon the ground that the alleged cause of action stated therein was against public policy and barred by Article 2-A of the Civil Practice Act. Section 61-b of the Civil Practice Act abolished rights of action theretofore existing to recover sums of money as damage for seduction or breach of contract to marry. The defendant's motion to dismiss was denied, 189 Misc. 88, 69 N.Y.S.2d 661. Order denying the motion to dismiss was affirmed, 272 App.Div. 1016, 74 N.Y.S.2d 398. Trial resulted in a verdict for the plaintiff. From an order granting defendant's motion to set aside the verdict, to the extent of reducing the amount of recovery, and from judgment entered thereon, both parties appealed. The order was reversed by the Appellate Division, 275 App.Div. 710, 86 N.Y.S.2d 871, the judgment was modified by increasing the amount thereof to that found by the jury and as so modified affirmed, and the defendant appeals.Judgment affirmed, with costs.

All concur.