Louis Norris for defendant.
Jacob Wenafsky for plaintiff.
of marriage and that the parties mutually agreed to rescind the contract of marriage (
Morris v. Baird, 269 App. Div. 948, also
Brandes v. Agnew, 275 App. Div. 843); where mutual rescission was claimed and delivery of the ring conditional upon marriage (
Hecht v. Yarnis, 268 App. Div. 771 and
Grishen v. Domagalski, 191 Misc. 365); where it was claimed that the ring was given to the defendant not as a gift or engagement ring but merely for the purpose of showing it to her parents as her future wedding ring (
Reinhardt v. Schuster, 192 Misc. 919). In view of these decisions the court is constrained to construe this action as one arising out of a breach of contract to marry and therefore falling within the bar of the act. Moreover, whether it can be convincingly urged that the engagement was definitely and completely broken on the first occasion when it is alleged that the ring was returned by the defendant and later restored to her for reconsideration, is doubted in view of the conflicting allegation in the complaint that "upon reconsideration the defendant decided that the engagement be definitely broken". In other words, it may fairly be concluded from the pleading, construing it liberally in favor of the pleader, that the engagement was definitely broken only after the defendant's reconsideration, the ring remaining with her after the give-and-take exchange and during a period of time inconclusive as to the state of the engagement or promise to marry. The motion is accordingly granted and the complaint is dismissed.