53 Barb. 238 | N.Y. Sup. Ct. | 1869
The first and third grounds of demurrer are not well taken. In regard to the first, that the complaint contains two distinct causes of action, which are not separately stated, it is not a cause of demurrer specified in section 144 of the Code, and the weight of authority most decidedly is that an error or defect of that kind is to be corrected by motion, and is not demurrable. As to the third ground, a cause of action sounding in tort is stated ip. the complaint against the defendant Margaret
The second ground, that two distinct and independent causes of action are improperly joined, must be held also to be not well taken if the decision in Brewer v. Temple, (15 How. Pr. 286,) is good law. That is a special term decision, and with all respect for the learned justice by whom it was pronounced, I think it is not sound law.
The complaint here, as in that case, states facts constituting a clear cause of action for an assult and battery, and also a clear cause of action for verbal slander, both in a single count, and alleges that the plaintiff was greatly injured in her person", and also in her character and feelings, and claims damages generally, for the sum of $2000. This relief is demanded for the combined injuries, and not for each injury separately. The causes of action are not separately stated, as required by the Code, and every other tolerable system or idea of pleading, but both are intermingled and woven together in a single fabric of manual and vocal tort. Causes of action for words and blows thrown into “hotchpot” and counted upon in that condition. Nothing is claimed as damages for the injury arising from the battery, as such, and nothing for the injury arising from the slander. Neither cause is claimed to have injured separately, but the injury and consequent damages spring from the union of the two wrongs. Should a verdict be rendered in the plaintiff’s favor, it must necessarily be a single verdict, and it would not appear and no one could ascertain, not even the parties themselves, how much the plaintiff had been injured in person, or how much in character, nor what measure of compensation had been awarded for either injury. Surely justice ought not to be so administered, unless the statute imperatively requires it.
The Code (§ 167) prescribes what causes of action may
E. D. Smith, Johnson and J. G. Smith, Justices.]