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Spies v. Accessory Transit Co.

12 N.Y. Super. Ct. 662 5 Duer 662 Court N.Y. Super. Ct. Decision date 1856-04-26 English

Delivered by Bosworth, J.

Contents

Majority

p. 662
E. Spies, by her next friend, v. The Accessory Transit Company.

Headnote

A complaint, in an action by a married woman, which states, that a passenger carrier undertook to carry her and her baggage from California to New York; that the baggage was her separate property, and was stolen on the passage, is good in substance. If further particulars, as to the time or manner of her acquisition of the baggage, as separate property, or to show it to be such, are material, the remedy is by motion, under § 160 of the Code. The defect, if any, cannot be reached by demurrer. Her husband is not a necessary party to such an action.'
At Special Teem,
April 26, 1856.
p. 663
This action comes before the court on a demurrer to the complaint.
The complaint states that E. Spies is a married woman; that defendant, being a common carrier, undertook to carry her and her baggage safely from San Francisco to New York; that the baggage, which was her separate property and paraphernalia, was stolen and damaged while in the custody of defendant and its agents, and claims to recover the damage consequent thereon. Defendant demurs, because, first, the plaintiff" is a feme covert, and has no legal capacity to sue; second, that there is a defect of parties, in that her husband is not joined with her, and that a judgment in this action would not protect the defendant against an action by the husband, the contract being made in California, and not in the state of New York.

The demurrer must be overruled. The husband need not be joined with the wife, when the action concerns her separate property. (Code, § 114.) Whether the plaintiff is a citizen of California or of New York, is of no consequence, so far as concerns the remedies and the forms of proceedings, when she prosecutes in the courts of this state. The demurrer admits the truth of the allegation, that the baggage was her separate property, and the court does not know that a California wife may not have a separate estate. The legal presumption is, that she may.

If the defendant has a right to be informed, by the complaint, of the particular facts which constitute the baggage her separate property, his remedy is by motion under § 160 of the Code. A demurrer will not reach such a defect, as the complaint is good in substance.

The defendant may answer, on paying the costs of the demurrer.