Defendant appeals from an order which denied her application for summary judgment. Plaintiff sues for the return of a ring. The operative facts, which are not contested, are that he gave the ring to defendant upon her promise to marry him and that she later renounced her intention so to do. Further, that at all material times the plaintiff was married to another. He was living apart from his wife and divorce was contemplated. He alleges that the mutual promises to marry were conditioned upon his ability to obtain a divorce.
Actions for the recovery of an engagement ring have undergone a curious history in this jurisdiction. It was recognized that the ring was distinct from other premarital gifts because of its symbolic nature and was recoverable if the donee terminated the engagement (Beck v. Cohen, 237 App. Div. 729). However, following the statutory abolition of actions for breach of promise to marry it was held that an action for return of the ring was not maintainable (Josephson v. Dry Dock Sav. Inst., 292 N. Y. 666). The underlying theory was that the public policy to deny recognition to claims for damages founded on an alleged breach of the promise to marry embraced actions for the return of gifts predicated on that promise. So the law remained until in 1965 the Legislature enacted section 80-b of the Civil Rights Law, which in pertinent part reads: 11 Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel * * * when the sole consideration for the transfer of the chattel * * * was a contemplated marriage which has not occurred.”
The section further provides for discretionary power in the court, if justice so requires, to award the donee a lien on the chattel for improvements made or to award a money judgment in lieu of one for return of the chattel.
The section does not create a new cause of action. It merely removes the bar which, for a time, had made the rights engendered by the facts unenforceable. This is apparent from the opening words: “ Nothing in this article contained shall be construed to bar a right of action ”. Patently the Legislature decreed a rule of construction which was contrary to that currently followed by the courts to give effect to the provisions of another statute. As Judge Asch concluded in a scholarly review of the section: “ The new section presumably restores the common-law rules which were in effect prior to the enactment of the anti-heart balm’s statute.” (Goldstein v. Rosenthal, 56 Misc 2d 311, 314.)
Reference to those common-law rules determines this action. The essential element which distinguishes the action for recovery *271of a ring given in contemplation of marriage from other actions for the return of other gifts the delivery of which has been completed is the breach by the donee of the contract to marry. Where one of the parties is already married the contract to marry is completely void (cf. Haviland v. Halstead, 34 NV Y. 643; Williams v. Igel, 62 Misc. 354; Davis v. Pryor, 112 F. 274). The fact that the married promisor contemplated divorce and the promises were conditional upon that eventuality does not validate the agreement (Smith v. McPherson, 176 Cal. 144; Leupert v. Shields, 14 Colo. App. 404; Noice v. Brown, 38 N. J. L. 228; 49 Harv. L. Rev. 648).
It would logically follow that, there being no valid agreement which could be breached, the gift remains absolute. However, in jurisdictions where the question has arisen decision denying recovery has been placed on grounds of public policy and the equitable principle of clean hands (Malasarte v. Keye, 13 Alaska 407; Morgan v. Wright, 219 Ga. 385; Armitage v. Hogan, 25 Wn. [2d] 672).
The ordered entered January 7, 1969, should be reversed on the law, the motion granted, and cross motion denied, with costs and disbursements to appellant.