Tuck v. Tuck

• Decision Date: 05 March 1963
• Citation: 18 A.D.2d 101,238 N.Y.S.2d 317
• Parties: Sharon Kellough Kibbee TUCK, Plaintiff-Respondent, v. Frederick TUCK, III, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 317

238 N.Y.S.2d 317

18 A.D.2d 101

Sharon Kellough Kibbee TUCK, Plaintiff-Respondent, v. Frederick TUCK, III, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 5, 1963.

Raphael P. Koenig, New York City, of counsel (Jerome R. Halperin, New York City, with him on the brief, Koenig & Ratner, New York City, attorneys), for appellant.

Edward R. Downing, New York City, of counsel (John A. Gleason, Manhasset, with him on the brief), for respondent.

Before RABIN, J. P., and VALENTE, McNALLY, EAGER and STEUER, JJ.

EAGER, Justice.

The appeal here is from an order denying a motion to dismiss, for alleged insufficiency on the face thereof, the plaintiff's first alleged cause of action. The position of the defendant is that the cause of action is in the nature of one to recover for seduction or breach of promise to marry and, as such, is outlawed by Article 2-A of the Civil Practice Act.

The complaint alleges that 'on or about October 21, 1960, defendant induced plaintiff to enter into a contract of marriage', and there are set forth certain acts and conduct on the part of defendant which would reasonably lead the plaintiff into believing that the defendant intended to enter into a valid marriage with her. It is then further alleged that on or about October 25th, 'the defendant told the plaintiff that he arranged everything for the marriage ceremony to be performed before a local judge in the State of New Jersey'; that the plaintiff accompanied the defendant to a certain place in New Jersey and upon 'arriving there, the defendant discussed the marriage ceremony with several men who were present and who appeared to be known to the defendant. Defendant induced the plaintiff to sign certain papers which defendant returned to the person officiating at the marriage ceremony. The marriage ceremony was performed and plaintiff and defendant were declared husband and wife, during which time the ceremonial gold band wedding ring was placed by the defendant on the plaintiff's third finger, left hand.'

It is further alleged in the complaint that, following the alleged purported marriage ceremony, the defendant 'represented to the plaintiff and to the third parties that they were duly married and were living together as husband and wife'; that the plaintiff relied upon the purported marriage ceremony and the subsequent representations of the defendant; that she believed that she and the defendant were duly married and were living together properly as husband and wife; that they continued until July, 1961 to live together, and, then, at a time when the defendant was having an affair with another woman, the defendant told the plaintiff that they were not legally married and thereupon the plaintiff left the defendant; that, subsequently, in October 1961, the defendant did marry another woman and that the defendant subsequently has stated that at no time was he married to the plaintiff. Finally, it is alleged that by reason of the fraud of the defendant, the plaintiff 'sustained irreparable damage to her person and reputation, and still suffers severe emotional stress and nervous shock with continued mental pain, anguish and distress, and has been obliged to undergo medical and other aid and attendance, and is unable to engage in any occupation or employment, and has been deprived of income, earnings and support', all resulting in her damage in a very substantial sum.

On the basis of the foregoing allegations, the defendant contends that plaintiff's cause of action is nothing more than a cause to recover damages arising out of a breach of a promise of marriage and for seduction following such promise. On the other hand, the plaintiff, seeking to avoid the bar imposed against such actions by Article 2-A of the Civil Practice Act, insists that this action lies as one to recover damages resulting from the fraudulent inducement of a putative marriage; and, in this connection, the plaintiff relies upon a line of decisions holding that an action for deceit will lie against a man who, by means of fraudulent misrepresentations as to his capacity to marry, induces a woman to enter into a void or voidable marriage with him. ¹

By statute here in New York, it is expressly provided that '[t]he 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.' (Civ.Prac.Act, § 61-b). Furthermore, there is the express provision that it shall be unlawful for any person, either as party or attorney, to file or serve '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' (Civ.Prac.Act, § 61-e). Consequently, as affecting the right to sue here upon plaintiff's alleged cause of action, it is immaterial that defendant's fraudulent conduct and plaintiff's damage, as alleged, occurred in part outside the state. (See 2 Carmody-Wait, §§ 21, 22, pp. 19, 20; O'Connor v. Johnson, D.C., 74 F.Supp. 370; Calcin v. Milburn, D.C., 176 F.Supp. 946. Cf. Parker v. Hoefer, 2 N.Y.2d 612, 162 N.Y.S.2d 13, 142 N.E.2d 194; Neporany v. Kir, 5 A.D.2d 438, 173 N.Y.S.2d 146.) Indeed, the plaintiff concedes, as she must, that her right to maintain the cause of action in this state depends upon whether or not the particular cause, as alleged, may be excluded from the causes intended to be outlawed by Article 2-A. ²

Specifically mentioned as included within the statutory ban were actions to recover damages for seduction. Here, the legislative intent was obvious. The term 'seduction', as related to a wrong against a woman, was a term of settled meaning. It was well understood to embrace all acts and conduct of a man, without the use of force, in wrongfully inducing a woman to surrender herself to his embraces and sexual desires. (See 79 C.J.S. Seduction § 1, p. 955; Black's Law Dictionary, 4th Ed., 1951; Anderson's Dictionary of Law, 1889 Edition.) And, the means of persuasion generally used by the man, and within the purview of the statute as well known to the legislature, were promises of or the fraudulent pretense of marriage. In fact, seduction 'under promise of marriage, or by means of a fraudulent representation to her (the woman) that he (the man) is married to her' was, by Penal Law provision, made punishable as a felony where the woman was unmarried and of previous chaste character. (Penal Law § 2175.) Having in mind these Penal Law provisions, it was obviously the intent of the legislature, in the abolition of the civil remedies for seduction, to restrict the righting of wrongs in this area, 'so far as they can be righted at all', to suitable Penal Law provision rather than to allow 'the recovery of money damages in a court of law'. ³ (See Aadland v. Flynn, 27 Misc.2d 833, 838, 211 N.Y.S.2d 221, 225, 226, affd. 14 A.D.2d 837, 218 N.Y.S.2d 527.)

Moreover, the statute, read as a whole, is plainly directed to outlaw in this state all actions for damages which are grounded on an alleged fraudulent promise or pretense of marriage. There can be no question with respect to the legislative intent in this regard. It had been found that the actions specifically enumerated, including the remedies provided for the enforcement of actions based upon a breach of contract to marry, had 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 that such remedies had 'been exercised by unscrupulous persons for their unjust enrichment, and * * * furnished vehicles for the commission or attempted commission of crime and in many cases * * * resulted in the perpetration of frauds'; and it was expressly 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.' (Civ.Prac.Act, § 61-a.) This declared public policy, the broad directive abolishing all actions for damages based upon a breach of contract to marry, and the provisions mandating a liberal construction for the statute (Civ.Prac.Act, § 61-h), make unmistakable the intent of the legislature. It was acting not only to bar the conventional breach of promise suit, but intended also to outlaw all claims on any hypothesis for a recovery of damages for seduction, blighted affections, wounded pride, humiliation and the like, where arising out of an unkept promise or a pretense of marriage. Included were all such claims grounded on allegations of fraud and deceit in connection with such promise. (See 2 Carmody-Wait, s25, pp. 22, 23; Sulkowski v. Szewczyk, 255 App.Div. 103, 6 N.Y.S.2d 97; Grunberg v. Grunberg, 199 Misc. 249, 250, 99 N.Y.S.2d 771, 772, 773.)

Here, the gravamen of the plaintiff's cause of action are the fraudulent promises and the fraudulent pretense of a marriage. The damages she would recover are exactly those which were recoverable in the former breach of promise action. (See 11 C.J.S. Breach of Marriage Promise, § 40 et seq.) The fact is that the damages which the plaintiff has sustained by reason of seduction, induced by such promises and the pretense of marriage, were, prior to the enactment of the statute, provable in aggravation of or as an element of the damages recoverable in a breach of promise case. (See Wells v. Padgett, 8 Barb. 323; Fearon v. Treanor, 272 N.Y. 268, 272, 5 N.E.2d 815, 816, 109 A.L.R. 1229; Sulkowski v Szewczyk, supra; Thibault v. Lalumiere, 318 Mass. 72, 60 N.E.2d 349, 158 A.L.R. 613.) So, being recoverable in a cause of action for breach of contract to marry, the right to damages of the nature sought here has necessarily been extinguished by the statutory abolition of such a cause. ⁴ (See Sulkowski v....