69 N.Y.S. 952 | N.Y. App. Div. | 1901
The interlocutory judgment overruling the demurrer should be affirmed. I think that the pleader intended to state a cause of action based only. upon personal assault, and that the complaint should be thus construed. The allegation of forcible entry and of the taking of personal property are to be considered as matters of description, and not statements of evidential facts. The pleading in this respect is to be construed as was the pleading in Langdon v. Guy, 91 N. Y. 661. Further, there is neither allegation of injury to the freehold nor of value of the goods taken, even if the pleading in this respect can be read (and I doubt it) as intending to charge a taking thereof against the contract rights of the plaintiff and of her husband.
The learned counsel for the defendant contends that there are three causes of action pleaded and improperly joined. If such analysis were justified, there would be more properly two, trespass and assault, instead of three. But, in any event, there is no improper joinder. The provision of the Code (section 484) that a plain
Interlocutory judgment affirmed, with costs. All concur.