Levy v. Harris

| N.Y. App. Div. | Jul 1, 1898

Patterson, J.:

The question presented on this appeal arises on a bill of exceptions bringing up for review the ruling of the trial justice who dismissed the complaint for failure of proof. In the 1st paragraph of that complaint it is averred that the plaintiff was the husband of one Lillie Levy, to whom he was married at a date stated. In a separate and 2d paragraph the pleader then sets forth in apt words facts constituting a cause of action against the defendant for enticing away the plaintiff’s wife. Had the substantial averments of the complaint stopped there, its sufficiency could not have been doubted; but the pleader went-further, and in the 3d separate paragraph set forth also in appropriate form a cause of action against the defendant for criminal conversation. It contains in connection with the 1st paragraph every averment essential to a declaration at common law (except the technical words of trespass), based solely on that cause of action. The justice presiding considered the complaint as an entirety, holding that it set forth but one single cause of action. The bill of exceptions recites that no evidence was given as to enticement, but proof was offered tending to show the adultery of the defendant with the plaintiff’s wife. Thereupon the complaint was dismissed.

Although not separately numbered, there are two causes of action separately stated. The enticing away is alleged to have been in 1894; the adulterous intercourse in 1896. 1STeither cause of action depended on the establishment of the other. If they were not pleaded in correct technical form that objection is not fatal and does not require a nonsuit at a trial. Each set of facts as pleaded gave rise to a different action, one for abduction, the other for adultery, the latter of which when made the basis of a civil action for damages is commonly called criminal conversation. The separateness of the two actions is complete. (3 Black. Com. 139.) To sustain that for abduction or enticement, proof of adultery is not required and the action for criminal conversation may be maintained, although the husband and wife are not living together at the times of the alleged adulterous intercourse. (5 Ency. PI. & Pr. 619, note.) The appellant insisted at the trial upon the separateness of the causes of action and. upon his right to prove the facts constituting that for criminal conversation. His position was well taken, for that cause of action was independent of the other. As to it, the allegations of abduction or enticing away were surplusage. The-allegations of enticement in 1894 were altogether foreign to those of adultery in 1896, and hence come directly within the definition-of surplusage. We have, therefore, a pleading containing two-causes of action, as to which one was susceptible of proof, the other not. It was too late to object to any technical defect arising from inartificiality, and the plaintiff was entitled to have his case heard on the one cause of action his proffered evidence tended to prove.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.