Smith v. Gebhardt — 25 N.Y.S. 1146

Majority

p. 1146

SMITH, Respondent, v. GEBHARDT, Appellant.

(City Court of Brooklyn, General Term.

October 23, 1893.)

Headnote

Action by Maggie Smith against Katharina Gebhardt.

Alex. T. Carpenter, for appellant.

McMahon, Stapleton & Miles, for respondent.

The complaint in this action was evidently drawn by a person who had but little knowledge of the rules of pleading in this state, and, if a demurrer had been interposed, the same would have been sustained. The ■objection that causes of action have been improperly joined must, be taken by •demurrer or answer, or be deemed to be waived. Code, §§ 488, 498, 499. After the denial of the motion to dismiss at the opening, the case seems to have been tried on the theory that the husband was liable only if he instigated the wife to utter the words complained of. Neither counsel excepted to the charge of the court, or made any requests, except on another point. Judgment and order ■denying new trial affirmed, with costs.