"Never had any real settled engagement; no more than a talk from one time to another; no bargain made," we think he was not required to give any evidence that was so prejudicial to the defendant as might cause a reversal. He did not admit that he was "much of a Lothario."

are.

5. While the defendant was being examined, he was asked in respect to certain letters which he had received from the plaintiff. He was required by the court to state in respect to those letters. He did state that according to his best judgment he saved them, and that he “picked them up, what I could find, and gave them to Mr. Pruyne." And he added: "I don't know how many letters I delivered to Mr. Pruyne. I intended to and did deliver all I could find. I am inclined to think I destroyed one letter written in pencil two or three years before the engagement. If I did receive any after the engagement, I have forgotten it. If I did, I saved them. I don't know where they I don't know as they exist anywhere, or ever did." Then he was asked: "If you received any they are with this bunch which you delivered over to your lawyers?" That question was objected to, and exception taken, and the witness answered, "Yes, sir. I should think they had read in evidence all the letters which I gave to Mr. Pruyne. I don't know of any that they have not read. I don't know of any that I had that I did not give him. I didn't deliver to Mr. Pruyne letters of a later date than May 17, 1886, to my knowledge. I picked up all I could find and gave them to him. I wrote to her after the engagement. It is my opinion that I received replies to those letters, but am not certain. I don't know how many. I think two or three, or more or less, but am not certain. I think I put them in the drawer with the rest of my other papers. I have no recollection of destroying but one, and am not certain about that. I put them in loose in a drawer. Had more than a bushel other papers in there." "Question. Did you take those letters that you received after your engagement with the others, and deliver them to your attorney?" This was objected to as privileged; overruled, and the defendant excepted. The witness answered: "I don't recollect. It has gone from my knowledge. I can't tell much about it. I picked up all I could find of them and gave them to Mr. Pruyne. I don't know whether there are other letters that have not been read or not." We think the rulings do not violate the privilege in respect to conversations and transactions between the attorney and client, and that the plaintiff was entitled to exhaust the witness' recollection in respect to the letters which were the subject of inquiry. We see no satisfactory ground upon which the rulings can be disturbed. Section 835 of the Code of Civil Procedure, referred to by the counsel for the appellant, prescribes that the attorney "shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment." It does not, however, shield the party from a disclosure of the facts relating to his parting with letters which are the legitimate subject of inquiry.

6. Complaint is made of the course the examination took in respect to the defendant's statements in his answer, and his statements upon the stand as a witness, and the pressure put upon him to explain why the contradictions found in his testimony of certain positions taken in his answer. We are of the opinion that the latitude indulged by the trial judge was not an abuse of his discretion, nor was it beyond the practice which has been tolerated quite generally in the progress of the trial.

7. During the examination of the plaintiff as a witness the following question was propounded to her: "Question. During these years he visited you, and down to the time of your engagement, or promise to marry him, in June, 1886, you may state whether or not you became attached to him." A general objection was taken to this, and the court remarked: "I think that is proper. To state what her feelings became towards him." Thereupon the defendant excepted, and the witness answered, viz.: “Answer. I certainly was, or I

During his visits after the 1 think that occurred before

should not have agreed to have married him. engagement to marry him-he had kissed me. the engagement as well as after. I was ready at the times agreed upon to marry him on my part, and desired to do so."

We think the facts disclosed in answer to the question were entirely legitimate, and that they were pertinent and proper, inasmuch as the defendant in his answer had set up, viz.: "The plaintiff has not now nor ever had any affection for him, nor any desire that she should ever become his wife, and that her only purpose was and is to procure money of defendant on the pretense that he had promised to marry her, and then been guilty of a breach thereof." Considering that language found in the answer, and also considering the evidence which the defendant offered, with a view of having the position taken in his answer believed to be a just one, we think the plaintiff was entitled to the evidence which she gave in answer to the question objected to, and that the defendant's exception to the ruling, allowing such evidence to be received, is unavailing.

When McKee v. Nelson, 4 Cow. 355, was decided, the parties to a marriage contract could not be witnesses for or against each other, and evidence in respect to the apparent attachment existing between the parties was allowed, and the court remarked, viz.: “It is true, as a general rule, that witnesses are not allowed to give their opinions to a jury; but there are exceptions, and we think this one of them. There are a thousand nameless things indicating the existence and degree of the tender passion, which language cannot specify. The opinion of witnesses on this subject must be derived from a series of instances passing under their observation, which yet they never could detail to a jury." In commenting upon that case, SELDEN, J., says in De Witt v. Barly, 17 N. Y. 344: "That was an action for breach of promise of marriage, and a witness, who knew the plaintiff, and had observed her conduct and deportment towards the defendant, was permitted to testify whether, in her opinion, the plaintiff was sincerely attached to him, a fact which it is plain could be proved in no other way."

We find nothing in either of the cases which warrants us in condemning the ruling which allowed the plaintiff to state the fact that she "became attached to him."

8. It is contended by the defendant that the court "erred in submitting to the jury the question of exemplary damages." At the close of the charge, the defendant's counsel took an exception in the following language: "I except also to submitting the question of punitive damages to the jury at all in this case." In the course of the charge the learned trial judge said: "The law is well settled now that juries may in their discretion-you are not compelled to that juries may in their discretion, in a proper case, allow what are known as exemplary or punitive damages, and this is the only kind of action on a contract where that kind of damages can be allowed. Ordinarily, such damages are allowed in cases of wrong, slander, libel, malicious prosecution, and that kind of actions where a wrong has been committed, but in no other action on a contract, except breach of promise, can this kind of damages be allowed; and I say, gentlemen, before reaching the decisions which I propose to read, to show you the rule to be applied,-this kind of damages in any case the jury are not compelled to give,-it is a matter of discretion with the jury in a proper case whether they shall give them. There are some cases of breach of promise of marriage in which a jury would not be justified in giving punitive damages; but in a case where you are justified in doing it, whether you will do it at all, or to the extent to which you will allow these damages, is a matter of discretion with you. I read you a few passages of the law as found in 42 N. Y., commencing page 477, as to the measure of damages this action [this is an action for breach of promise] has always been classed with actions of torts, as libel, slander, seduction, criminal conversation, etc., and

not without reason. It is the policy of the law to encourage matrimony, and society has an interest in contracts of marriage, both before and after they are consummated. A man who enters into a contract of marriage with improper motives, and then ruthlessly and unjustifiably breaks it off, does a wrong to the woman, and also, in a more remote sense, to society, * * * as well as the man who commits a tort under circumstances showing a bad heart. The rule of damages applicable to ordinary contracts would be wholly inadequate. So much depends in each case upon the circumstances surrounding it, and upon the conduct, standing, and character of the parties. 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 a view of measuring out punishment to him, as well as compensation to the plaintiff, it is always competent to inquire into his motives and intentions, to show that the act complained of was done wantonly, insolently, maliciously, or with a bad and wicked heart. In such actions it is not only proper to show the main transaction, but any facts bearing upon or relating to it, showing it was done wantonly, maliciously, and wickedly, with a view of enhancing the damages. * * * In an action for breach of promise of marriage, it is always competent for the purpose of enhancing the damages to prove the motives that actuated the defendant; that he entered into the contract, and broke it with bad motives and a wicked heart, and it is competent for him to prove in mitigation of damages that his motives were not bad, and that his conduct was neither cruel nor malicious."" He also quoted quite extensively from Johnson v. Jenkins, 24 N. Y. 253. He then added, viz.: "Exemplary or punitive damages, to which I have just called your attention, are in your discretion. wholly in your discretion. You have not an arbitrary right to fix what you please, or to fix them at all. You must believe, in the first place, in order to permit you to award punitive damages at all, that the defendant either entered into this contract originally dishonestly, without any idea of carrying it out, for a bad purpose, and perhaps I may say there is no evidence of that here. When he entered into the contract, so far as appears here, he seems to have been in earnest about it, and, if that be so, then you can only allow exemplary damages in this case, provided you believe there was something which actuated him, some bad motives, bad purpose, or bad design in the manner of the breaking of it off. If he thought, when he came down to the time when he was called upon to marry this woman, being honest down to that time,—if he then thought that his condition of health was such that he ought not to carry out his contract, and then in breaking it he did nothing unduly to oppress the plaintiff, withdrawing from it or avoiding it as easily as he could, and with as little trouble to the plaintiff as possible,-then, gentlemen, you would not be justified in punishing him for it. He is liable for compensatory damages fully, no matter what his motives were. Having made the contract, if he has violated it, whatever will fully and fairly compensate the plaintiff she is entitled to anyhow, without reference to his motives. The question of his motives bears only upon the question as to whether you shall allow any, and, if so, what, exemplary or punitive damages; and you should not allow those-you haven't any right to allow them—in a case where the original contract was made with good intentions, unless there was something in the manner of the breach of it which was malicious, which was from bad motives, or there was some act of his which was particularly oppressive to the plaintiff in the manner of his avoiding the provisions of the contract."

Not

We are of the opinion that the question of damages, compensatory and punitive, was properly and clearly submitted to the jury by the learned trial judge. Hunt v. Bennett, 19 N. Y. 173; Johnson v. Jenkins, 24 N. Y. 252; Thorn v. Knapp, 42 N. Y. 474; Sedg. Dam. (6th Ed.) 248, 455.

Nor do we think the damages given by the jury are excessive, or that the amount indicates that the jury was "influenced by prejudice, passion, or cor

ruption." Mr. Sedgwick says, at page 455: "This action is given as an indemnity to the injured party for the loss she has sustained, and has always been held to embrace the injury to the feelings, affections, and wounded pride, as well as the loss of marriage. From the nature of the case it has been found impossible to fix the amount of compensation by any precise rule, and, as in tort, the measure of damages is a question for the sound discretion of the jury in each particular instance, subject, of course, to the general restriction that a verdict influenced by prejudice, passion, or corruption will not be allowed to stand." It was said in Thorn v. Knapp, 42 N. Y. 474, that damages in this class of actions "have never been limited to the simple rule governing actions upon simple contracts for the payment of money." "For the breach of the contract of marriage, though in form of an action of assumpsit, is, in fact, and always has been since it was sustained at common law, in respect to this question of damages, really in the nature of an action for a tort." Page 483. In Minick v. City of Troy, 19 Hun, 258, BoCKES, J., in referring to the case of Coleman v. Southwick, 9 Johns. 51, approves of the language of KENT, C. J., used in that case, wherein he says, viz.: "The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality, or corruption, we cannot consistently with the precedents interfere with the verdict. It is not enough to say that, in the opinion of the court, the damages are too high, and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries."

In Coppins v. Railroad Co., 48 Hun, 300, we had occasion to review the cases bearing upon the question of excessive damages, and to deduce therefrom the rule applicable to such cases, and while we interfered with the verdict in that case, there was wanting in it many of the elements which enter into the question of damages in the case in hand. In that case, there was no predicate for punitive damages. It was a case simply for compensatory damages.

In Grant v. Willey, 101 Mass. 356, it was held that the "time during which an engagement had subsisted is a proper circumstance for the jury to consider." And it was held in Berry v. Da Costa, L. R. 1 C. P. 331, that the "jury may take into account the plaintiff's altered social position, in consequence of the defendant's misconduct." And in Smith v. Woodfine, 1 C. B. (N. S.) 660, the language which we have quoted from Sedgwick on Damages was approved; and it was stated, viz.: "The jury are allowed to take into their consideration all the circumstances." In January, 1889, the general term of the First department sustained a verdict in Campbell v. Arbuckle, 4 N. Y. Supp. 29, for $45,000, in a case somewhat like the one before us.

In Houghkirk v. Canal Co., 92 N. Y. 224, the power of the general term to interfere with the verdict on the ground that it is excessive is recognized and reaffirmed, and the court remarked that "while the judgment of the trial court should not be lightly disturbed, it should not be held necessarily conclusive."

After a full and deliberate consideration of all the circumstances disclosed in the evidence, and in the light of the precedents and rules of law to which we have already adverted, we are of the opinion that we ought not to interfere with the verdict on the ground that the same is excessive. Judgment and order affirmed, with costs.

MARTIN, J., concurred. MERWIN, J., concurred in the foregoing opinion, except upon the question as to the amount of damages.

SMITH 0. CREGO.

(Supreme Court, General Term, Third Department. September 21, 1889.)

1. COMPOUNDING FELONY-EVIDENCE-MINUTES OF MAGISTRATE.

In an action on a note, where the defense is made that it was given in consideration of an agreement to compound a felony, statements by the prosecuting attorney, contained in the minutes of the magistrate who conducted the preliminary examination into the felony, are not admissible to prove such an agreement to compound by the plaintiff.

2. SAME-EMbezzlement-AGREEMENT TO REFUND.

A promise by a father to repay money embezzled by his son is not in itself an agreement to compound a felony.

3. WITNESS-PRIVILEGED COMMUNICATIONS-WAIVER.

Under Code Civil Proc. N. Y. § 836, allowing a person to waive the right of having his communications with his counsel kept secret, a party may call his counsel to testify to conversations between them.

4. SAME-WHAT ARE PRIVILEGED.

A communication to his counsel by one party, in the presence of the other, is not privileged.

5. EVIDENCE-PAROL.

An admission contained in a letter may be explained by parol evidence.

6. APPEAL-REVIEW-EXCLUSION OF TESTIMONY.

Where there is a conflict of testimony, the erroneous exclusion of any testimony, bearing on the merits, is cause for reversal.

Appeal from circuit court, Albany county.

Action by Oscar Smith against Russell Crego. Judgment was rendered for defendant, and plaintiff appeals.

Argued before LEARNED, P. J., and LANDON and INGALLS, J.J.
Mark Cohn, for appellant. Chase & Delehanty, for respondent.

LEARNED, P. J. This action is on a note made by Dwight L. Crego and indorsed by Russell Crego. The defense is that it was given on an agreement to compound a felony. Dwight L. had been in the employment of the Wheeler & Wilson Manufacturing Company, and had been charged with embezzling money. He had been arrested, and was still under arrest when the note was given. On the defense above stated, the testimony of the plaintiff and that of the defendant are in conflict. The plaintiff offered in evidence the minutes of the magistrate, with the affidavit and warrant. The defendant objected to a part of the minutes, as follows: "Prosecuting attorney stated that all money due the company had been refunded, and, the prosecution paying expenses, the court admitted defendant to bail in $500." At the close of the case, the plaintiff requested the court to charge that the plaintiff is not to be prejudiced, or the jury infer there was such agreement or understanding, from the statement in the minutes of the justice that the prosecuting attorney stated, etc. The court, in reply, said to the jury: "You are to take into account all that was received before you, and give it such weight as in your judgment it is entitled to." The defendant excepted.

Now, the minutes of the justice were admissible, and therefore this statement was before the jury. But it was merely the statement of the magistrate of what was said by the prosecuting attorney. It was no evidence against the plaintiff of any agreement or understanding as to compounding the felony. Yet the jury might, under this instruction, have understood that this statement of the magistrate had some weight in supporting the defense. We think that the plaintiff was entitled to have the jury instructed as he requested. The defendant says that the statement was harmless, because the money was refunded in fact; but the manner in which this statement is made in the minutes seems to indicate that it was inserted as a reason for putting the bail at a small amount, and thus to afford some evidence that there was an agreement to compound the felony.