Polhemus v. Melides

The opinion of the court- was delivered by Black, J. This- was a motion to discharge the defendant from arrest, in an action for breach of promise of. marriage. The record shows a Supreme Court commissioner made an order to hold the defendant to bail, in an action for a breach of promise of marriage. The order was based on'the ground that the defendant fraudulently led the plaintiff, Caroline Polhemus, to believe that he would marry her; that he willfully and fraudulently deceived her by his statements made to hei’ during the time that he kept company with her, then refused to carry out his promise to many her. The affidavit presented to the commissioner, on which the order is based, is attacked as insufficient. ■ We think the affidavit fully supports the order made by the commissioner. It shows that, under the promise of marriage, the defendant seduced the plaintiff, the seduction being effective by means of the promise of marriage arid it entered into the promise as a component of the wrong. The parties lived together as man and wife, under the name of Mr. and Mrs. Harry Melides, at Ho. 1136 Garden street, Hoboken, for some time. On November 2d, 1920, the plaintiff gave birth to a baby boy, the father being the defendant. During all this time the defendant continually promised to marry tire plaintiff, until he deserted her. In the case of Perry v. Orr, 35 N. J. L. 295, 301, Mr. Justice Scudder said the affidavits in the case sufficiently disclose the facts of the promise to many, the seduction effected by means of the same, the attempt to elude the jurisdiction and process of the court, and the refusal to marry. Such conduct is fraudulent. In this case, all these facts are present, set out in the affidavit, except “the attempt to elude the jurisdiction and process of the court.” -We think this is not a necessary .element [107] in the proof of fraud; it may he an additional circumstance which may he considered. Bnt without this-, the affidavit in this ease is sufficient. This is the meritorious question on this motion, in this ease. The motion, therefore, is denied. The order was made under the fourth subdivision of section 57 of the Practice act (Pamph. L. 1903, p. 551; 3 Comp. Stat., p. 4069), viz., that the defendant fraudulently contracted t-lie debt or incurred the demand. All the mooted questions in this- case are fully discussed in Ferry v. Orr, supra; a restatement of them seems therefore unnecessary. There are hut few cases in the reports on the subject. They will be found collected in the note to Mainz v. Lederer, 59 L. R. A. 957. In 4 Rul. C. L. 454, § 12, it is stated tlie courts have generally held seduction to lie a sufficient fraud to sustain the right to arrest in breach of promise suits, and as exempting from the operation of constitutional provisions prohibiting arrests, in actions for debt, except where fraud exists. 5 C. J. 459, § 113; Id. 4 1-7, § 96. By holding the affidavit submitted on this motion sufficient to justify the order made by the commissioner, we do not preclude the defendant from an inquiry into the fraud, atibe trial, under the eaae of Austrian v. Laubheim, 78 N. J. L. 178; affirmed, 80 Id. 459. The motion to discharge the defendant from arrest is denied, with costs.