p. 307in said custody, and restrained and deprived the said plaintiff of his liberty without any reasonable or probable cause whatsoever.
“ And said plaintiff further says that all of the said malicious acts aforesaid were contrary to the laws and customs of this State, and in violation of the same, and against the will of the said plaintiff, whereby the said plaintiff was not only greatly hurt, bruised, and wounded, but was also thereby then and there greatly exposed and injured in his credit and circumstances, and was then and there hindered and prevented from performing and transacting Ms affairs and business, by means whereby, said plaintiff says he has sustained damages to the amount of ten thousand dollars.
The defendant moved to strike out parts of the complaint, especially those indicated above by italics, as irrelevant and redundant; or, if more than one cause of action was intended to be set up, that the complaint be made more definite and certain, and the causes of action be separately stated, and distinctly numbered.
It was conceded by the plaintiff’s attorney, on the motion, that'the action was for false imprisonment, and that alone.
M. M. Budlong, for the motion,
I. The circumstances and particulars by which the imprisonment was accomplished, are improper in the complaint (Shaw v. Jayne, 4 How. Pr., 119 ; Eddy v. Beach, 7 Abb. Pr., 17 ). Being in aggravation of damage, the words “ with force and arms assaulted the plaintiff,” and the words “ with great force,” &c., as far as, and including “ along divers public streets in said city,” should be stricken out as irrelevant, and the words “ restrained and deprived the said plaintiff of his liberty ” should be stricken out as redundant (Molony v.
p. 308Dows, 15 How. Pr., 261 ; Bowman v. Sheldon, 5 Sandf., 660 ).II. The causes specified in the notice and asked to be stricken out, being neither parts of material allegations in an action of false imprisonment, nor averments of special damage, are grievances from which the defendant should be relieved on motion, he being compelled to answer them, or if demurring, to admit their truth (Isaac v. Velloman, 3 Abb. Pr., 464 ; Williams v. Hayes, 5 How. Pr., 470 ).IH. The averment “ contrary to the latos and customs of this State, and in violation of the same,” is not the allegation of a,fact, but of a conclusion of law ( 13 How. Pr., 37 ). The averment “ contrary to the laws,”' &c., must not be confounded with the material allegation “ without authority of law,” which means without an order of arrest or warrant duly issued by a competent tribunal (4 E. D. Smith, 445; 1 Hilt., 45), and which is a fact. The words “contrary to the laws and customs of this State, and in violation of the same,” being a conclusion of law, are irrelevant, and should be ■ stricken out ( 23 Barb., 583 ; Van Santvoord’s Pl., 310).T. C. Cronin, opposed.
I. The allegations in the complaint are true, and cannot be irrelevant or redundant. Even if stated by way of aggravation, the allegations- are proper, and cannot be struck out on motion ( 10 Abb. Pr., 141 ; Hallenbeck v. Clow, 9 How. Pr., 292 ).II. The allegations constitute a cause of action, and cannot be struck out on motion (Averill v. Taylor, 5 Trans., 476; 6 Id., 208).HI. The motion is a frivolous one, and should be denied.The motion to strike out parts of the complaint as irrelevant and redundant is denied, except the sentence hereafter quoted.
p. 309The several statements of the plaintiffs as to the acts complained of, have relation to but one continuous transaction, alleged with special circumstances of injury or aggravation as to each step in the progress of the affair, and they constitute a single cause of action for injury to the person, with or without force, in the several occurrences related in the pleading.
They do not constitute separate causes of action. The plaintiff could not sue and recover for the assault first alleged,' as for the act of dragging Mm through the streets, or for the false imprisonment lastly alleged, and again maintain another action for any of the other matters attending Ms arrest and imprisonment (Farrington v. Payne, 15 Johns., 432 ; Fetter v. Beale, 1 Salk., 11).
The Code of Procedure permits the joinder of separate causes of action for injuries, with or without force, to the person (§ 167, subd. 3); and the court could consolidate such actions as might have been originally joined; but such power is in no way decisive as to the entirety of causes of action, if separately and independently stated, and occurring on different occasions, or as to what might constitute different causes of action. To allow the uniting in one statement, of a cause of action, consisting of different trespasses (where they all substantially arose out of the same act), such as the statement of an assault, an assault and battery and false imprisonment, does not prejudice the defendant, since he may in Ms answer confess, deny or justify .each separate act; while to regard them as separate causes of action and subjects of different suits, would be allowing an unwarrantable splitting up of controversies.
The several subjects of complaint having reference to an entire, although continuous transaction, their joinder as one is properly allowed without charge of irrelevancy or redundancy.
p. 310The case disclosed by the complaint is one of injury to the person,
andprima ¡facie actionable.
The allegation that such acts are “ contrary to the laws of the State, and in violation of the same (contra pacem regis),” was, under the old system of pleading, regarded as mere matter of form, and not traversable (1 Chitty Pl., 422; Gardner v. Thomas, 14 Johns., 134 ). It is equally so under the Code, as a mere matter of form, or conclusion of law, and is not necessary or proper to be stated. The rights of the parties are to be judged solely by the facts stated ; and the allegations last above quoted ought to be stricken out as irrelevant and redundant.
Ho costs are allowed.
Order accordingly.