I concur in the reversal of this judgment upon the ground that the plaintiff was entitled to show -that the defendant Lucille A. Tiffany had a husband living and ivas thus incapacitated from entering into a marriage contract with the defendant Burnett Y. Tiffany, for it is apparent that if one of the contracting parties had not the capacity to make a’ marriage contract her promise to marry cannot be a consideration to sustain an agreement by the person with whom she made a contract to marry. I think, therefore, that the plaintiff should have been allowed to show that the defendant Lucille A. Tiffany could not contract a marriage, and, therefore, could make *307no valid contract to marry at the time of the agreement which is set up by her as a defense to the plaintiffs cause of action.
I think, however, that a different rule applies to the defendant Burnett Y. Tiffany’s ability to contract marriage. If the defendant Lucille A. Tiffany, acting upon the belief and assumption that he was capable of making a valid contract of marriage, made with him a contract to marry, her promise was a good consideration to support the agreement by him to make a marriage settlement. The same principle has been, applied in an action for breach of contracts of marriage where a recovery has been sustained against the defendant making the contract, although at the time he was actually incapable of entering into a marriage contract. And upon analogy -I think a promise by a person capable of contracting marriage is a sufficient consideration for any promise that the other party to the contract may make, whether capable of contracting a marriage or not.
For these reasons I think the judgment should he reversed and a new trial ordered, with costs to the appellant to abide the event.
Clarke and Scott, JJ., concurred.
Judgment reversed, new trial granted, costs to appellant to abide event.