Hodecker v. Strickler

46 N.Y.S. 808 | N.Y. App. Div. | 1897

Per Curiam :

The complaint as originally drawn was demurred to upon the ground that it failed to state facts sufficient to constitute a cause of action, and such demurrer was sustained at the Special Term, but. the customary privilege to amend was granted." The amended complaint was in turn demurred to upon the same ground, and this was-likewise sustained. , From the interlocutory judgment entered thereon this appeal is brought.

Upon the first decision a very careful and comprehensive opinion was written by Mr. Justice Beadleit (39 H. Y. Supp. 515), which, commends itself to our unqualified approval, and while the plaintiff has availed herself of the privilege’ to reform her complaint, we are-unable, after a careful reading of the amended pleading, to discover wherein she has successfully met the adverse criticism to which the first complaint was subjected. '

But, if we correctly apprehend the present attitude of the plaintiff’s counsel, he does not rely with so much confidence upon the amendments which have been incorporated-into his pleadings -as he does upon the general proposition that the complaint has,- from the very first, contained a good and completé cause of action, inasmuch as it alleges facts which, if true, as they must be assumed - to be in the present situation of the case,- constitute a crime, his theory being, as we understand it, that this necessarily determines the wrongful character of the acts complained of, and requires that a court of equity shall discover some suitable remedy therefor. The crime which it is claimed has been committed by the defendant is that which is defined by section 562 of the Penal Code, which, so far as deemed applicable, reads as follows, viz.:

“ A person who falsely personates another, and in such assumed character marries, or pretends to marry, or to sustain the married relation towards another, with or without the connivance, of the latter, * * * is punishable by imprisonment in a state prison for not more than ten years.”

We do not wish to be understood as assenting to the proposition of the plaintiff’s counsel, that the violation of any provision of the criminal law necessarily established a right to maintain a civil suit; nor is it necessary to seriously consider the same, for we think the learned counsel is clearly in error when he asserts that the defendant has violated the provision of the Penal Code just quoted, as it is not claimed that before marrying, or pretending to marry, or prior to sustaining the marriage relation with Hodecker, she falsely personated the plaintiff. Indeed, she never pretended to personate her. She has simply held herself out to the world as Mrs. Frederick Hodecker; and while in doing so, under the circumstances detailed in the complaint, she was undoubtedly guilty of conduct which was morally indefensible and false"in fact, she did not thereby bring herself within either the letter or the spirit of the offense denounced by the section in question, and consequently the counsel’s contention, so far as it is founded upon the supposed commission of a crime, is utterly fallacious.

But without prolonging the discussion of the various questions to which our attention has been directed, it is sufficient to say that, for the reason just stated, as well as for those given by Mr. Justice Bradley, we are of the opinion that the demurrer should be sustained.

. Interlocutory judgment affirmed, with costs.

All concurred, except Follett, J., not sitting.

Interlocutory judgment affirmed, with costs.