Ward v. Ward — 5 Abb. Pr. 145

Majority

p. 145

WARD against WARD.

Supreme Court, First District; Special Term,

Dec., 1868.

Headnote

Pleading.—Complaint.—Demubbeb.

The remedy for superfluous matter in a complaint,—such as an allegation of abandonment, in an action for divorce on the ground of adultery,—is by motion, not by demurrer, although such matter be stated in a form appropriate to a separate cause of action.

Demurrer to amended complaint.

p. 146

The action was "brought "by John A. Ward against Amelia C. Ward. The plaintiff in the first four paragraphs of the amended complaint, averred that the parties were married, had one child, and that the defendant had without his consent abandoned him. The fifth paragraph “for a further cause of action,” averred the adultery of the defendant. A general prayer for judgment granting a divorce a vinculo, and the custody of the child, closed the complaint.

The defendant demurred on the grounds—1. That several alleged causes of action were improperly united. 2. That the abandonment did not constitute a valid cause of action.

Elbridge T. Gerry, for the demurrer.

—I. Assuming both the alleged abandonment and adultery to be valid causes of action, they are improperly united (Pomeroy v. Pomeroy, 1 Johns. Ch., 606 ; Griffin v. Griffin, 23 How. Pr., 183 ; McNamara v. McNamara, 2 Hilt., 547 ; Henry v. Henry, 17 Abb. Pr., 411 ).

II. If the plaintiff could not originally unite these two alleged causes, he cannot join them by amendment (Sheldon v. Adams, 18 Abb. Pr., 405 ).

III. The defect here complained of can only be taken advantage of by demurrer, not by motion to strike out (Hoffman v. Hoffman, 35 How. Pr., 384 ; Quintard v. Newton, 5 Rob., 72 , in point).

IY. The second ground of demurrer is also well taken. The statute does not authorize a husband to sue for abandonment (3 Rev. Stat., 5 ed., 238, subd. 3 of § 64).

Y. The demurrers are not inconsistent. The Code authorizes the joiner of the two grounds in one demurrer (Code, §§ 144, 145).

L. B. Wells, for the plaintiff, opposed.

—I. The demurrer is not well taken because, the complaint does state one valid cause of action,—e. g., adultery,—to warrant the relief asked (11 Paige, 161 ; 5 Id., 1,7 ; 4 Sandf., 464 ; 18 Ala., 479 ; 1 Smed. & Marsh. Ch., 17 ; 21 How. Pr., 9 ; Meyer v. Van Collem, 7 Abb. Pr., 222 ;

p. 147

28 Barb., 230 ; Durant v. Gardner, 19 How. Pr., 94 ; 10 Abb. Pr., 445 .)

II. The second ground of demurrer is only to a portion of the cause of action, and therefore untenable (Lord v. Vreeland, 15 Abb. Pr., 122 ; 24 How. Pr., 316 .)

III. The allegations of abandonment were only inserted to show a stronger right to the custody of the child. The words“ further cause of action” do not help the demurrer ( 14 How. Pr., 456 ).

—There is but one cause of action stated in this complaint, viz: the adultery. The allegation that the defendant has abandoned and deserted her husband is no ground of divorce, and is improperly inserted in the complaint, but it is not stated as a cause of action, nor is any relief asked for on account of that fact.

The statement in the 5th paragraph, “ that for a further cause of action he states, &c.,” does not show that there are two causes in the complaint (Hillman v. Hillman, 14 How., 456 ).

The proper rule is laid down in Meyer v. Lent, 7 Abb. Pr., 225 , viz: that in such cases the remedy is by motion, and not by demurrer.

Judgment for plaintiff on demurrer, with leave to answer, &c., and without prejudice to a motion to strike out.