Opinion
February 7, 1946.
Appeal from the City Court of the City of New York, New York County, RIVERS, J.
Samuel Silverman and Samuel Bonom for appellant.
Elias Low, Milton C. Jacobs and Arthur V. Selig for respondent.
MEMORANDUM
The cause of action for fraud arising out of the breach of promise to marry upon which the judgment was entered is legally insufficient ( Andie v. Kaplan, 288 N.Y. 685; Josephson v. Dry Dock Savings Institution, 292 N.Y. 666; Hecht v. Yarnis, 268 A.D. 771). The issuance of the body execution, therefore, was without basis.
The judgment, apart from the body execution, was supported by testimony making a prima facie showing of appellant's failure to repay loans. Appellant not having shown sufficient excuse for his failure to proceed with the trial the lower court did not abuse its discretion in imposing a condition on the opening of the default.
The order appealed from should be modified to the extent of granting the motion to vacate and set aside the order directing the issuance of body execution, and said execution, without terms, and as modified affirmed, without costs.
HAMMER, SHIENTAG and HECHT, JJ., concur.
Ordered accordingly.