O'CONNOR v. Johnson

• Decision Date: 28 October 1947
• Docket Number: Civ. A. No. 3538.
• Citation: 74 F. Supp. 370
• Parties: O'CONNOR v. JOHNSON.
• Court: U.S. District Court — Western District of New York

74 F. Supp. 370

O'CONNOR v. JOHNSON.

Civ. A. No. 3538.

District Court, W. D. New York.

October 28, 1947.

Phillips & Skinner, of Jamestown, N. Y., for plaintiff.

Lombardo & Pickard, of Jamestown, N. Y., for defendant.

KNIGHT, District Judge.

Plaintiff, a resident of North Carolina, sues defendant, a resident of New York, for $165,000 for breach of promise of marriage, alleging in her complaint that the promise was made and accepted in Southern Pines, North Carolina, on or about March 30, 1945; that it was agreed that the marriage ceremony would be solemnized on September 17, 1946; that plaintiff on numerous occasions requested him to fulfill his promise but he made excuses and requested postponements; that, in January, 1947, he requested postponement for another year, to which she refused to agree; "that (she) then insisted that (he) carry out his agreement but that (he) since that time has failed and refused to carry out his promise to marry the plaintiff although plaintiff at all times has been ready and willing to carry out the agreement on her part."

Plaintiff further alleges, upon information and belief, that "the laws of North Carolina provide that a valid contract of marriage exists where there is an offer of marriage and an acceptance having mutuality * * *; that where no definite time or place is fixed or agreed upon, the contract will be construed as providing for the marriage within a reasonable time as determined by the circumstances of the particular case * * *; that a refusal to perform a marriage without sufficient excuse constitutes a breach thereof for which the person causing such breach is liable to the other in damages."

Defendant moves to dismiss the complaint on the grounds (1) that it "fails to state a claim upon which relief can be granted", (2) that it "fails to state facts sufficient to constitute a cause of action, and is insufficient in law upon the face thereof."

Plaintiff's counsel urge in their brief "that the only question for decision upon this motion is whether Article 2-A of the New York Civil Practice Act should be held to prevent the plaintiff from obtaining relief in this Federal Court, sitting in New York, upon a transitory cause of action admittedly arising in North Carolina, where the plaintiff resides, based upon a grievous wrong done her by reason of plaintiff's breach of his contract of marriage."

Article 2-A of the New York Civil Practice Act provides:

"Sec. 61-a. Declaration of public policy of state. The remedies heretofore provided by law for the enforcement of actions based upon alleged alienation of affections, criminal conversation, seduction and breach of contract to marry, having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases having resulted in the perpetration of frauds, it is hereby declared as the public policy of the state that the best interests of the people of the state will be served by the abolition of such remedies. Consequently, in the public interest, the necessity for the enactment of this article is hereby declared as a matter of legislative determination."

"Sec. 61-b. Certain causes of action hereafter accruing abolished. The rights of action heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction, or breach of contract to marry are hereby abolished."

This latter section became effective March 29, 1935.

The Court of Appeals of New York in Fearon v. Treanor, 272 N.Y. 268, at page 275, 5 N.E.2d 815, 817, 109 A.L.R. 1229, held: "We are convinced that the Legislature, in passing the statute, acted within its constitutional power to regulate the marriage relation for the public welfare." On a motion to amend the remittitur, the court said (273 N.Y. 645, 8 N.E.2d 36) that the remittitur will be amended by adding, "This Court held that the law aforesaid is not repugnant to the Constitution of the United States." On appeal to the U. S. Supreme Court, the latter decided: "Per Curiam. The appeal herein is dismissed for the want of a substantial federal question." 301 U.S. 667, 57 S.Ct. 933, 81 L.Ed. 1332. A rehearing was denied, 302 U.S. 774, 58 S.Ct. 6, 82 L.Ed. 600.

The provisions of the act relating to alienation of affections and criminal conversation were also held constitutional in Hanfgarn v. Mark, 274 N.Y. 22, 8 N.E.2d 47. An appeal to the U. S. Supreme Court was unanimously dismissed "for the want of a substantial federal question." 302 U. S. 641, 58 S.Ct. 57, 82 L.Ed. 498. Among the cases which it cites is Silver v. Silver, 280 U.S. 117, at page 122, 50 S.Ct. 57, 58, 74 L.Ed. 221, 65 A.L.R. 939, where it had said: "We need not, therefore, elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object."

Plaintiff's counsel urge that the prohibition in Article 2-A of the N. Y. Civil Practice Act does not apply to her because the promise of marriage was made and breached outside of the state. They find a limitation of the statute in Sec. 61-d, which reads: "Sec. 61-d. Legal effect of certain acts hereafter occurring. No act hereafter done within this state shall operate to give rise, either within or without this state, to any of the rights of action abolished by this article. No contract to marry, hereafter made or entered into in this state shall operate to give rise, either within or without this state, to any cause or right of action for the breach thereof."

That this section does not limit the general prohibition contained in Section 61-b is evident from the provisions of Sections 61-e and 61-g.

Section 61-e provides: "It shall hereafter be unlawful for any person, either as party or attorney, or an agent or other person in behalf of either, to file or serve, cause to be filed or served or threaten to file or serve, or to threaten to cause to be filed or served, any process or pleading, in any court of the state, setting forth or seeking to recover a sum of money upon any cause of action abolished or barred by this article, whether such cause of action arose within or without the state."

Section 61-g provides: "Any person who shall violate any of the provisions of this article shall be guilty of a felony which shall be punishable by a fine of not less than one thousand dollars nor more than five thousand dollars, or by imprisonment for a term of not less than one year nor more than five years, or by both such fine and imprisonment, in the discretion of the court."

"The rule of construction prescribes, that statutes imposing penalties, in case they are disobeyed, shall be held to be mandatory, and that courts shall not then consider the circumstances of a case, or its hardship or inconvenience." Bradley v. Buffalo, N. Y. & Erie R. Co., 34 N.Y. 427, 431.

Section 61-h further declares: "This article shall be liberally construed to effectuate the objects and purposes thereof and the public policy of the state as hereby declared."

This District Court was created and established by Congress pursuant to the authority vested in it by the Constitution. Its jurisdiction cannot be limited by any act of the New York Legislature. Said Article 2-A does not attempt so to do.

Plaintiff's counsel assert in their brief: "The only case clearly in point, involving an action under this statute, brought in a Federal District Court in New York, is Wawrzin v. Rosenberg, D.C.E.D.N.Y.1935, 12 F.Supp. 548." In that case a New Jersey resident sued a New York resident for alienation of his wife's affections. The court denied a motion to dismiss the complaint. The case was decided October 22, 1935, several months after said Article 2-A became effective. The court said: "If, therefore, the law of New York were applicable to the pending case, under the authority of Bucher v. Cheshire R. Co. 125 U.S. 555, 8 S.Ct. 974, 31 L.Ed. 795, it would seem that the complaint herein would have to be dismissed; but it does not appear from the complaint that the wrong or injury was committed in the state of New York. In consequence the law of the state does not necessarily apply. If at the trial the proof shows that the wrongful acts of the defendant were committed within the state of New Jersey, then the New York statute obviously would not be a bar because the plaintiff's right is transitory, governed by the law of the place and not of the forum." 12 F. Supp. at page 549.

On the other hand, in Fahy v. Lloyd, D. C.D.Mass., 57 F.Supp. 156, decided in 1944, it was held that public policy, declared by Massachusetts statute, to prohibit actions for breaches of contract to marry, extends to rights acquired outside that state and that the conflict of laws rule applicable in Federal District Court is that prevailing in courts of state wherein federal court sits. The court, in granting defendant's motion to dismiss the action, said: "The following facts appear from the pleadings: The defendant in Massachusetts telephoned to the plaintiff, who was in Nassau, Bahama Islands, and asked the plaintiff to marry him. She over the phone accepted this proposal and agreed to marry him. Subsequently the defendant in Boston phoned to the plaintiff, who at that time was in Connecticut, and in the course of the conversation over the phone expressed his intention not to live up to his contractual promise." 57 F.Supp. at page 156.

After quoting the Massachusetts statute which provided: "Breach of contract to marry, shall not constitute an injury or wrong recognized by law, and no action, suit or proceeding shall be maintained...