Holliday v. Parker , 30 N.Y. Sup. Ct. 71 ( 1880 )

Bockes, J.:

‘ Ye are of the opinion that the decision in Wade v. Kalbfleisch, (58 N. Y., 282) sustains the ruling of the learned judge at the Circuit. The reasoning of the court in .the case cited seems entirely conclusive of the question here presented. The action in that case was based on contract — contract of marriage. It was held that notwithstanding this, the action in its essential and controlling features was in tort for an injury to tlie person of tlie plaintiff, lienee that it abated, on the defendant’s decease, and could not be revived against his executors or administrators.

The action here, for seduction, is an action on the case in tort; and, like Wade v. Kalbfleisch, has a personal injury for its prin- ' cipal ingredient as a right of recovery. True, the right of action is made technically to depend upon loss of service ; but, as was said in the case cited, the damages are not measured by the pecuniary loss sustained ; but “ are in the discretion of the jury to the same ' extent as in strictly personal actions, such as slander, malicious prosecution, assault and battery and the like; and the recovery may be, and usually is, principally for injured feelings, anxiety of •mind, wounded pride and blighted affections ” (p. 285). The point urged in the case in hand is that the right of action to the extent of the actual damages sustained, is based on a wrong “done to property rights or interests.” This precise point was urged in ’' Wade v. Kalbfleisch. Speaking to which Judge Ciiurcii said: ' “ The learned counsel suggested, that upon a trial against the executors or administrators, the personal elements of the action might be eliminated, and a recovery confined to the pecuniary loss.” The learned judge added: “There is no precedent-for such a proceeding, and no principle upon which it could be adopted,” and after considering the question somewhat in detail he further remarked : “ aside from these considerations, suggested ■ to show the novelty, if not the absurdity of such a trial, the brief answer to this point is that the action is from its peculiar nature indivisible. • If revived at all, it must be revived in its entirety. If its personal features are abandoned, the incidents only remain.” Again the learned judge says: “ the controlling consideration is that it ” (the action) “ does not relate to property interests, but to personal interests.” These remarks apply with full force to the case in hand, and' the conclusion declared in the case cited must control the disposition of this. They are, too, in harmony with the line of argument pursued by Judge Denio in Lipe v. Eisenlerd (32 N. Y., 229), and by Potter, J., in Damon v. Moore (5 Lans., 454). So, too, in Badgley v. Decker (44 Barb., 577), it was laid , down that the real gravamen of the action for seduction is not the loss of service, but the mortification and disgrace of tlie family, and the wounded feelings of tbe plaintiff. Judge Mason there says: “ All the modern cases hold that the legal gravamen of the action is not the real gravamen,” and .that it was often spoken of as an action “ resting upon a fiction.” It seems within all the cases that the right of action for seduction rests in personal tort and dies with the person. (Price v. Prive, 11 Hun, 299 ; affirmed in Court of Appeals, 75 N. Y., 244; Butler v. New York & Erie R. R. Co., 22 Barb., 110.) The above views are not at all in conflict with the decision in Creqin v. B. C. R. R. Co. (75 N. Y., 192).

Ye have seen that in an action for seduction the real gravamen of the action is the injury to the feelings, and that the pecuniary loss is a mere incident, only technically necessary to the right of action. In Cregin’s case it was conceded that under those circumstances the right of action died with the person.

It is not suggested by the plaintiff’s counsel in this case that a. light of action for seduction is assignable. If not assignable, it would not siuwive to or against executors or administrators.

The judgment dismissing the complaint must be affirmed, with costs.