Straus v. Schwarzwaelden — 17 N.Y. Super. Ct. 627

Majority

p. 627

Straus v. Schwarzwaelden.

Headnote

1. In an action against a defendant for criminal conversation with the plaintiff's wife, he may be held to bail on an affidavit which states a cause of action, and nothing more.

2. Such an action is one for “ injury to person,” within the meaning of those words as used in section 179 of the Code, subdivision 2.

(At Chambers, November, 1859.

Before Bosworth, Ch. J.)

The plaintiff, on affidavits showing that the defendant had been guilty of criminal conversation with the plaintiff’s wife, moved ex parte, in an action brought to recover damages therefor, for an order to arrest and hold the defendant to bail. The Judge expressing some doubts, whether the defendant could be held to bail, under the Code, on an affidavit which stated merely a cause of action, and did not show that the defendant was not a resident of the State, or was about to remove therefrom, took the papers for consideration. The next morning he granted the order, assigning the following reasons:

If the question were res nova, whether a defendant, in an action of crim. con., could be held to bail on an affidavit which established a cause of action and only that, and did not show that the defendant was a non-resident of the State, or was about to remove from it, I should hesitate about holding the wrong to be an injury to the person of the plaintiff (the husband) within the meaning of section 179 of the Code, subdivision 1.

It is an injury to the personal rights of the husband. But this section has been construed to embrace such a cause of action, under the description of an “injury to person.” It was held that this language was used in its established legal signification; and that among injuries to person, are included the abduction or beating of a wife, or criminal conversation with her, for which trespass vi 'et armis would lie at common law at the suit of the husband. (4 How. Pr. R., 234; 3 Code R., 9; 3 Black. Com., 139, 140; 4 Cow. R., 412.)

An execution against the body would, according to the practice as established prior to the Code, issue as a matter of course

p. 628

in such an action. If a construction so limited be given, that an order of arrest cannot be made on proof of a cause of action alone, it must follow that no ca. sa. can be issued on the judgment. It is difficult to believe that the Legislature, from any considerations of public policy, designed to abolish this remedy.

I am, therefore, inclined to think, that the construction given by Mr. Justice Parker, and subsequently by Mr. Justice Mason, on consultation with his brethren, (3 Code R., 9,) is tenable. The order applied for is granted.