Hughes v. Walter

Giegerich, J. The action is to recover damages for an alleged breach of promise to marry. The complaint alleges “ that heretofore and on or about the 2d day of June, 1907, in consideration that the plaintiff, who was then sole and unmarried, at the request of the defendant, would marry him on request, the defendant promised the plaintiff to marry the plaintiff on request.” The complaint, among other things, furtheralleges that the plaintiff has repeatedly requested and demanded of the defendant that he marry her, and that defendant has neglected, failed and refused, and does still neglect, fail and refuse so to do, and demands judgment for $5,000. The defendant has demurred to the complaint for insufficiency, and urges that the alleged contract to marry lacks mutuality, and hence is not enforcible. The case of Smyth v. Greacen, 100 App. Div. 275, is cited in support of such contention. There the complaint alleged that “ in consideration that the plaintiff, who was then a sole and unmarried woman, at the request of the defendant, agreed and would marry him on such request, the defendant prom [200] ised the plaintiff to so marry her on his request.” Mr. Justice Ingraham, who wrote the prevailing opinion, in passing upon the sufficiency of the allegation just quoted, said, at page 276: “ What was it that the defendant promised ? He promised to marry the plaintiff at his request, or, in other words, that he would marry her when he made a request that she marry him. This was in substance a mere option to marry the plaintiff, without any corresponding obligation on his part to marry her and there was, therefore, no mutuality in the promise which can sustain the contract.” In the present case, however, the defendant promised to marry the-plaintiff on her request, and the moment the plaintiff re- i quested the defendant to marry her there arose an obligation ' on the part of the defendant to do so. There is thus in the case -at bar the necessary mutuality consisting of a legal obligation on the part of each of the parties to marry, which element, as already shown, was lacking in the Smyth case. The complaint sufficiently alleges a valid contract and a breach thereof by the defendant. Getzelson v. Bernstein, 15 Misc. Rep. 627. The demurrer is, therefore, overruled, with costs, with leave to the defendant to withdraw the same and to answer, upon payment of such costs, within twenty days after the service of the interlocutory judgment, with notice of entry thereof. Demurrer overruled,' with costs, with leave to defendant to withdraw same and to answer, upon payment of costs, within twenty days after service of interlocutory judgment and notice of entry thereof.