It is further argued that it was error for the trial judge to charge the jury that, if they found for the plaintiff, she was entitled to recover such damages as the jury might award; that they were permitted to exercise their discretion in regard to the amount of damages, provided only that their conduct was not marked by prejudice, passion, or corruption. This was not by any means the whole of the charge upon that branch of the case. This is the acquiescence of the judge to a proposition to charge the jury, coming after he had urged upon them that they were bound by the evidence in the case, and must not be influenced by any sympathy for the one party or hatred for the other. But, even if this part of the charge stood alone, it would not be such error as would justify us in reversing the judgment. This language is derived substantially from the case of Southard v. Rexford, 6 Cow 256, and is sustained by the case of Thorn v. Knapp, 42 N. Y. 474. The judgment appealed from should be affirmed, with costs.

BRADY, J., concurs.

VAN BRUNT, P. J., (dissenting.) I cannot concur with my associates in the conclusion at which they have arrived, although it may be supported by quite ancient and respectable authority. An examination of the decisions upon which such conclusion is founded will show that the only authority for the extraordinary proposition that in any and every breach of promise case the amount of damages is within the discretion of the jury is the case of Southard v. Rexford, 6 Cow. 254. But an examination of that case shows that it is no authority for this remarkable proposition. It is meagerly reported, but it appears that, from the nature of the defense to the breach of the contract sued upon, set up in the answer of the defendant, which he utterly failed to prove, he became liable as matter of law to exemplary damages. Exemplary damages are always in the discretion of the jury, and the damages in that case, therefore, were in the discretion of the jury; and this is all that was decided. Based upon this supposed authority, the case of Kniffen v. McConnell, 30 N. Y. 285, was decided. That was an action to recover damages for breach of promise of marriage. The defendant, under a general denial, offered in mitigation of damages, and was allowed to give, some evidence tending to show acts of impropriety and lewd conduct on the part of the plaintiff for the purpose of proving criminal intercourse with other men. The presiding judge, among other things, charged the jury that if the defendant had attempted to prove the plaintiff guilty of misconduct with other men, of which he knew she was not guilty, it aggravated the damages; another case in which the conduct of the defendant, if it was found by the jury as stated by the court, made the plaintiff entitled as matter of law to exemplary damages. In the case of Thorn v. Knapp, 42 N. Y. 474, the charge was that, where the defendant, in his answer, as in this case, attempts to justify his breach of promise of marriage by stating therein, and thus placing upon record as the cause of his desertion of the plaintiff, that she has had criminal intercourse with other persons, and fails to prove it, the jury have a right to take this circumstance into consideration in aggravation of damages to which the plaintiff might be entitled; and this charge is coupled with the statement that the defendant did not attempt to prove upon the trial any of these allegations. In this case, also, it clearly appears that the plaintiff, as matter of law, under the circumstances, was entitled to exemplary damages, which are within the discretion of the jury. In this case the court say: "The general rule as to actions upon contracts is that the plaintiff can only recover compensation for the damages he has sustained by the breach of the defendant, and exemplary damages or punitory damages are not allowed. To this rule the action of breach of contract of marriage is the exception, and, so far as I now call to mind, the only exception. As to the measure of damages, this

action has always been classed with actions of tort, as libel, slander, seduction, criminal conversation, etc., and not without reason." Here it is distinctly stated that, in addition to damages for the breach of the promise, in certain cases, where the defense thereof has been accompanied by a personal wrong, the action for the breach of promise of marriage then becomes classified with actions of tort in which exemplary damages may be given. In those cases the question as to whether the plaintiff is entitled to exemplary damages or not depends almost exclusively upon the motive with which the defendant has committed the wrong. And that this is the theory upon which the exemplary damages are allowed in actions for breach of promise of marriage is clearly conceded by the language of the court in the case last cited. It is said in that case that in all cases where vindictive damages are allowed, it is upon the theory that the defendant's conduct has been such that he deserves to be punished; and with the view of measuring out punishment to him, as well as compensation to the plaintiff, it is always competent to inquire into his motives and intention, to show that the act complained of was done wantonly, insolently, maliciously, or with a bad and wicked heart. Therefore it follows that, where the motives of the defendant are good and honest, there is no case made out for vindictive or exemplary damages, and it is only where the motives that actuated the defendant are proven to be bad, and that he entered into the contract and broke it with a wicked heart, that the plaintiff is entitled to recover exemplary damages; and it is competent for the defendant to prove in mitigation of damages that his motives were not bad, and that his conduct was neither cruel nor malicious. It therefore follows from these cases, and necessarily follows that in actions for a breach of promise of marriage, the damages are no more within the discretion of the jury than they are in the action of slander, seduction, or criminal conversation, and that the same rule applies as to the difference between the right of the jury to give compensatory or exemplary damages.

In the case at bar, there having been a breach of the contract of marriage, the plaintiff was entitled to recover compensatory damages. These damages are not within the discretion of the jury, but they must find a verdict upon the evidence, and their judgment must be exercised upon this evidence, and it is by this judgment, based upon the evidence, that such damages must be assessed. If the jury found in this case that the defendant entered into this contract, and broke it with bad motives, and a wicked heart, they had the right to punish him by exemplary damages; and these damages were within their discretion. In the case at bar, although the jury were charged as to compensatory damages, and that they might take into consideration certain circumstances of the case in aggravation of damages, yet, upon the whole case, the plaintiff was not entitled to have the court instruct the jury as matter of law that she was entitled to exemplary damages. But this is virtually what the court charged the jury The summing up of the charge to the jury was that, if the jury found that the defendant promised to marry the plaintiff, and without just cause refused to fulfill that promise, the plaintiff is entitled to receive such damages as the jury might award. This proposition is clearly erroneous, as it places the question of the amount of damages within the discretion of the jury, without taking into consideration the only element in the case which justifies the exercise of that discretion, namely, the bad faith of the defendant. The mere fact that he broke the contract without just cause, does not necessarily import bad motives. He might have honestly thought that he had just cause, and the jury may have been of opinion that he had not. If he was honestly of the opinion that he had just cause, and his conduct in that respect was that of a reasonable man, and an honorable man, then no case whatever was presented to the jury for exemplary damages. The effect of this charge is to hold that in every case of breach of promise of marriage (because no such case can succeed unless there has been a refusal to fulfill the contract without just cause) the jury may award such damages as they see fit.

The next proposition is equally faulty. It is that the jury are allowed to take into their consideration all the circumstances, and, provided their conduct is not warped by prejudice, passion, or corruption, they are permitted to exercise their discretion over the amount of damages. This proposition is nowhere restricted by the fact that none but compensatory damages could be allowed unless a case for exemplary damages had been made out. It is but to repeat what has already been said that, in order to entitle the jury to render exemplary or punitive damages, there must be some reason for the infliction of punishment; and action in good faith does not, in cases of this description, afford any such ground.

The next proposition is that if the jury found that the defendant failed to prove the charges made by him against the plaintiff of improprieties on her part, in mitigation of damages, they were entitled to consider that fact in aggravation of damages. This proposition ignores the motives with which the charges were made. In all the cases cited, charges of improper conduct were made, and improper conduct of a more grave character than that charged in the case at bar. In those cases there was not only a failure to prove, but an utter failure to attempt to prove, the verity thereof. In the proposition mentioned, the motive of the defendant is entirely ignored; and it seems to me that this is an error which runs through the whole presentation of this case to the jury, and that the jury should have been instructed as to the difference between compensatory and exemplary damages, and their attention called to the different rules which should govern them in the assessment of these two classes of damages. There was evidence enough in this case to justify the jury in drawing inferences which would entitle the plaintiff to exemplary damages of the most substantial character. If this question had been properly submitted to the jury, the verdict, to my mind, would not seem to be in the least excessive. But it is impossible to say, from the manner in which this case has been submitted to the jury, as to whether they found such facts against the defendant as would justify them in finding a verdict of exemplary damages. The exercise of their discretion was nowhere limited upon the finding of such facts, but they were told that they had absolute control, no matter how they found the proof, as long as the breach of contract was established, to award any damages that they might see fit. I do not think that this is the rule of law governing cases of this description, nor is it sustained by the authorities which have been cited.

GRAHAM v. GULLIVER et al.

(Supreme Court, General Term, First Department. January 28, 1889.) EXECUTORS AND ADMINISTRATORS-ALLOWANCE OF DEMANDS-EVIDENCE.

A claim was presented against intestate's estate for desk-room at claimant's store, and for services rendered intestate. The latter for many years had his desk in the store, first of claimant and his partner, and, after their dissolution, in that of claimant himself. Their relations were intimate, and claimant, his partner and clerks, rendered him services in the management of his business. They also had financial transactions, which were closed, and not in controversy. Intestate stated to different persons that he moved his desk and business to that place to save expense. In the accounts kept by claimant no charge was made against intestate for desk-room or services, nor in any of their correspondence about their dealings were those items referred to, and on one occasion claimant asked intestate for a loan of a large amount, when an equal sum would have been due him according to the theory on which his claim was presented. The relations of the parties were intimate and confidential, and intestate also rendered the claimant services. The claimant testified that it was agreed between them that the amount intestate should pay was to be left to himself, which accounted for the fact that no entries on the books were made. Held, that the evidence justified a finding by the referee adverse to the claim.

Appeal from special term, New York county.

v.4N.Y.s.no.1-3

John H. Graham presented to William C. Gulliver, administrator, and Maria H. Hotchkiss, administratrix, a claim against the estate of Benjamin B. Hotchkiss, deceased, which was reported adversely by the referee. Judgment was rendered dismissing the claim, from which, and from an order denying a motion to set aside the report, the claimant appeals.

Argued before VAN BRUNT, P. J., and BARTLETT and DANIELS, JJ.
F. C. Reed, for appellant. James G. Janeway, for respondents.

DANIELS, J. The reference was ordered on a stipulation of the parties for the hearing and determination of a claim for services and desk-room, made by the appellant against the estate of the intestate. The intestate was engaged in business, and employed the greater part of his time in Paris, in France; and the appellant and his partner carried on business at 113 Chamber street, in the city of New York, until the dissolution of the firm, and after that the same business was continued by himself alone. From April, 1877, to February, 1885, when the intestate departed this life, he had his desk in the office, first of the firm of Graham & Haines, and, from their dissolution, in the office of Graham alone. And both Graham, and Graham & Haines, and their clerks, devoted their attention and services to business of the intestate, from time to time transacted at this store. He was in New York for several months during each of these years, with the exception of one year,— that of 1881. And while he was there he made use of the desk and the deskroom in the office, so far as it was requisite in the course of his business, and while he was away from the city of New York his letters were received at the store, and opened and answered by persons in its employment. And letters were written also for him, in like manner, concerning different occurrences in the course of the transaction of his business. There were also financial transactions, in which the claimant and his partner, and the claimant himself, advanced moneys for the intestate from time to time, and held his notes, and exhibited an artillery gun kept for him in the store for exhibition and inspection. So far as the financial transactions extended, they were wholly settled and adjusted between the parties, with the exception of three demands after the 14th of February, 1885, and they were withdrawn from the hearing before the referee. No claim was made by the appellant, either on his own account directly or as the assignee and successor of the firm of Graham & Haines, for moneys which had been expended and used in the business of the intestate; but the claim was wholly confined to what was charged as a compensation for the use of the desk-room, and the services performed by the firm, and afterwards by Graham and their clerks, in the business of the intestate.

It appeared upon the trial, from the testimony of a number of witnesses uninterested in the controversy, that in the course of conversations had at different times with them by the intestate he had stated to them that he moved his desk and this business to the store of this firm for the reason that it would be less expensive to himself than the place had been where he had previously been located. The conversations which took place, and which are to be accepted as proved by the testimony of these witnesses, maintain the fact to be that the intestate intended to remunerate this firm for the accommodations and services in this manner secured by him. But it is equally as clear from the other evidence given upon the trial that there was no definite understanding whatever as to the extent or the amount of the compensation which should be made. And as the intestate himself was in the habit of rendering services for the firm, and this succeeding member of it, the referee has concluded that there was no design on his or their part to make any further claim for compensation than such as was derived in this manner. The parties appear to have sustained very friendly relations to each other; the intestate, in the conversations which have been referred to, mentioning Graham & Haines

And the correspond

as his boys, whom he had brought up in the business. ence, which was at great length read upon the trial, is a still further evidence that the relations between these persons were in an unusual degree friendly and confidential.

The business which proceeded in this manner, and the desk-room occupied by the intestate in the office of the store, extended over a period of nearly. eight years. And both the firm of Graham & Haines, during its continuance, and Graham, as its successor, had an account upon their books with the intestate, charging and crediting the moneys expended and received in his business. And on the 9th of March, 1883, an account was rendered by the firm of Graham & Haines to the intestate of these transactions, but no reference whatever was made to any charge for desk-room, or for the services which had been rendered for the intestate in his business going to the store. But this account was accompanied with a letter written by Mr. Haines,-one of the members of the firm,—in which, after referring to a statement of account received from the intestate, he said: "I have now had drawn off a complete statement of our account against you as it stands on our books. Have given you credit as per your statement, less forty dollars, with which we had previously credited you, and trust you will find this correct." This account, as well as the statement contained in the letter, indicated the conviction of the writer to be that in some unexplained mode the value of the desk-room, and of the services performed at the store and elsewhere in the business of the intestate, had been otherwise provided for and adjusted in the course of the transactions of these parties. And that this may have been the fact is further evinced by the circumstance that no entry during the life-time of the intestate, was made upon the books either of Graham & Haines, or of Graham, their successor, making any charge whatever to the intestate on account of the desk-room, or of these services. It was not contended that any payment had in fact been made by him to either of these persons; but it has been assumed that the services and accommodations on his part rendered for and extended to them satisfied them for what they did in this manner for him; and this conclusion was further very materially supported by the letter of Graham himself to the intestate written on the 8th of April, 1884. The time had then nearly arrived for making a change in the business of Graham & Haines, and the former was disposed to buy out his partner, as he afterwards did, and go on with the business on his own account. In this letter a statement of the proceeds or profits of the business was made from the year 1870 to July 1, 1883, showing the business in each year to have been profitable and remunerative. But no intimation was given whatever that there was any outstanding demand to be added to the results of the business on account of this desk-room and these services. The statement was made as evidence of the fact that money might be loaned by the intestate to Graham, to enable him to buy out his partner, without any risk whatever to the former. And in this letter, after disclosing the necessity for obtaining financial aid, the writer, Mr. Graham, added: “At present I do not know who to go to, and I don't think I have any claims on you but friendship. * * * 1 suppose I would need ten to fifteen thousand for three years, to make it easy payments for the business. I would like to know what you think of it. I can give some security through my wife. I would like to regard this letter as confidential. If you would be willing to venture the loan, please cable me personally," etc. If the claim which was made against the estate was well founded in fact, then the intestate would have been at this time indebted to Graham & Haines in an amount equaling the greater proportion of this proposed loan; and it would have been most natural for Graham to have referred to that fact, and suggested a payment of that account, if in truth it had any foundation whatever as a demand in favor of this firm. But so far from anything of that kind being done, the letter was, as all preceding correspondence had been, en