Sund v. Paul

YORK, Acting P. J. This appeal arises out of two cases, one for conversion of personal property and the other for breach of promise of marriage, both of which were consolidated in the trial court and tried together before a jury. At the close of the evidence, the court instructed the jury in each case to return a verdict for the defendant. This action of the trial court is denominated as error by appellant. Respondent contends that the only question involved in this appeal is whether there is such a conflict in the evidence that the matter of the alleged conversion of the personal property and the alleged breach of contract to marry on the part of respondent should have gone to the jury; and [683]claims that in the absence of such conflict, the action of the trial court in directing a verdict in both cases cannot be censured.

The record shows, as far as the pleadings are concerned, that on January 11, 1935, plaintiff filed her complaint for conversion of personal property; defendant answered putting in issue the ownership of the property involved, except one diamond bracelet and one mink coat, and in that connection set up in haec verba two bills of sale to these articles executed by plaintiff, and further alleged, as a defense to this cause of action, the unchastity of plaintiff with one Mitchell Dressner on or about April 4, 1933. On January 31, 1935, plaintiff by affidavit denied the genuineness of the bills of sale, alleging execution thereof by means of fraud, duress, and threats of injury to her character.

On the same date on which said complaint for conversion was filed, plaintiff filed her action for breach of promise of marriage, to which defendant filed his answer, alleging unchastity of plaintiff; that plaintiff voluntarily ended the engagement by an instrument in writing, attached to answer as an exhibit; that she also executed a complete release of all claims which she might have had against defendant, also attached as an exhibit; and further alleged that plaintiff sought to reassume her contractual relations with defendant, as evidenced by telegrams and letters which were attached to the answer. Plaintiff by affidavit filed January 31, 1935, denied the genuineness and due execution of the instruments attached to the answer, alleging they were obtained from her by means of fraud, duress and unlawful detention of her person.

The evidence shows that the parties to this action met in the summer of 1931 and became engaged to be married in 1933; that plaintiff had in her possession certain articles of jewelry and a mink coat which she claims were gifts to her from the defendant. With the exception of a diamond bracelet and the mink coat, defendant claims that these pieces of jewelry were loaned by him to plaintiff while she was working for him in an antique shop which he operated in New York City, and that as to the bracelet and the mink coat, plaintiff executed bills of sale for these, when defendant’s sister bought them from her for the sum of $400, which instruments are part of the record. In April, 1933,