7 Abb. N. Cas. 249 | New York City Court | 1879
The circumstances of this case are simple and significant. It appears that the plaintiff was living in harmony with her husband, enjoying his protection and support, and that the defendant enticed the plaintiff’s husband away, and caused a separation. For that alleged willful, malicious, and illegal act, the plaintiff brings the action to recover damages, and procures an order of arrest.
On this application to set aside that order two questions are presented: First, will the action lie ? If it will, was the defendant liable to arrest %
We have in this State no precedent for an action of this precise character. But like actions have received judicial sanction elsewhere. It was thus in the case of Lynch v. Knight (9 House Lords Cas. 577). In that suit the plaintiff charged that her husband had sent her away because of certain words spoken of her by the defendant. No improper act had been imputed to her by the defendant, and the words spoken were too trivial to lead to a separation. The deprivation suffered by her was imputable to the whim or undue sensitiveness of the husband rather than to the malicious pur
But, without such aid, I should have little hesitation in holding that the plaintiff is entitled to the relief sought. This is a special action on the case for a wrong ; and for every wrong willfully, or even negligently inflicted, and causing loss and damage, there is a remedy. That is so with us, even if the party injured be a married woman. Many of the disabilities imposed on her by the common law have been shaken off, and she may now sue and be sued without the consent of her husband, and without his being a party to the record.
It is said that the cases above cited were mere actions of slander. But the real grievance was the separation charged to have been caused by the spoken words; and in the Ohio case it was alleged that the
I am of opinion that an order of arrest in such a case is a remedy allowed by the Code.
The motion must be denied, with costs.
[In overruling the demurrer, stated that he still held to the views expressed in the opinion on the motion as to the order of arrest, and that if the defendant desired to be heard at general term, a stay would be granted.]
affirmed the order overruling the demurrer, upon the above opinion of Neilsoe, Ch. J.
Reported in 8 Cent. L. J. 478; 19 Alb. L. J. 494.