The action was for a breach of promise to marry. The answer, save for admission that defendant had in fact married another, was in substance a general denial. When called as a witness defendant admitted a promise to marry plaintiff, but testified to facts from which the jury would have been justified in finding that any engagement arising from such promise had been mutually rescinded and abandoned. This evidence was admitted without objection and was not struck out. The learned court charged the jury that, inasmuch as the defendant had failed in his answer to set up matter in confession and avoidance of the promise, which promise he had admitted, the only question for the jury was one of damages. To this exception was duly taken. I think the charge was wrong. It is immaterial whether defendant’s testimony was or was not admissible under the answer if it bore on a material feature of plaintiff’s cause of actibn and was a part of the record when the case was submitted to the jury. In this situation it was the duty of the trial court to give defendant the benefit of the testimony without regard for any defect in the answer. This principle is applicable to trials in actions at law (Collins v. Butler, 179 N. Y. 156; Eastwood v. Retsof Mining Co., 86 Hun, 91; affd., 152 N. Y. 651; Barcus v. Dorries, 64 App. Div. 109, 112) as well as to those in equity. (Baily v. Hornthal, 154 N. Y. 648.)
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., concurred; Scott, J., dissented.