Majority
p. 272Robert Jackson, App’lt, v. Pierre M. Brown, Resp’t. (Supreme Court, General Term, Second Department, Filed December 1, 1893.)
Headnote
Pleading—Demurrer.A complaint where the first count is for loss of services of plaintiff’s servant, and the second to set aside a release of the first cause of action on the ground that it was obtained by fraud, is not demurrable on the ground of misjoinder.
Appeal from a judgment sustaining a demurrer.
Mansfield Compton, for app’lt; A. A. Gardner, for resp’t.
This is an appeal from a judgment entered upon an order sustaining a demurrer to the complaint. Nominally, the first cause of action is for loss of services of a servant by reason of seduction by the defendant, and the second cause alleged is to set aside a release of the first cause of action, obtained by fraud. Although alleged as two causes of action, there is really but one—
p. 273
the action for loss of services. The allegations relative to the release were merely incidental to the cause of action. It is true the plaintiff has pleaded the loss of services, and left it for the defend rnt to set up the release as a defense, and then avoided it on the ground that it was obtained by fraud, but the defendant is not prajudiced by the fact that it is a part of the complaint. We also think this method of pleading is authorized by the Code, but it may not be greatly commended. The case resembles the familiar method often employed when it is sought to reform a policy of insurance, and then recover upon it as reformed.
Judgment reversed, and new trial awarded, with costs to the appellant, to abide the event.