Allen, J.
The question before us was not in the case of Shumway v. Cooper, decided by this court in 1856, and was not considered in Brumskill v. James, (1 Kern. 294,) even if a question somewhat analogous in principle was in the latter case and might have been decided. In Shumway v. Cooper, the right of action depended upon the election of the wife to affirm and ratify the conversion of realty into personalty. And the only evidence of such election was the bringing of the action in the name of husband and wife, which being, in law, the action of the husband, did not bind the wife to the election thus made, and as no amendment could by relation give effect to an election then made, as if made at the time of the commencement of the action, and give a right of action which did not then exist, the question whether, in ordinary cases, or as a question of practice in actions by husband and wife, the name of one of them might be dropped by an amendment, was not considered. And this is expressly stated by the judge in delivering the opinion. Had the question before us ever been decided in that case, it would be incumbent upon us to regard it as an authority. In Brumskill v. James the defendants claimed to be husband and wife, but had held themselves out and contracted as partners, and not as husband and wife. And the question considered and *70decided wag one upon which there had been some conflict in the decisions of the supreme court, to wit, whether, in an action against several, upon a contract alleged to be joint and not several, the complaint and proceedings could be amended upon the trial, by striking out the names of those against whom a cause of action was not proved, and the action be permitted to proceed against the other as upon a several contract ; or whether, in such action, a verdict and judgment might be given for some and against others of the defendants. Judge Grardiner, after stating the objections of the defendant, says, he “relies upon the misjoinder and upon the general rule of the common law, that when a joint contract is the subject of the suit, the recovery must be against all the defendants, or neither. This was the inconvenience the above provisions of the code (sections 136, 274,) were designed to remedy; and no case is likely to be presented in which their application would be more manifestly equitable and just than the present.” The case did not turn at all upon the peculiar relations of the defendants to each other as husband and wife. And the case was not presented to the court as distinguished, by that circumstance, from any other action in which two defendants were sued upon a contract alleged to be joint, but which was proved, upon the trial, to be the several contract of one of them. The action, when brought by the husband and wife, for an injury to the person of the wife during coverture, is for a cause of action which survives to the wife if the husband dies before judgment and execution, but which belongs to the husband during the life of both, which he may settle and compound or release at any time, and which the wife cannot control during the life of the husband. At common law, the recovery in an action like this was for the benefit of the husband, and he could bring scire facias in his own name upon a judgment recovered in the names of himself and wife. (Com. Dig., Baron and Feme X, citing 3 Lev. 403.) If the money had been collected and come to the hands of the wife, it would nevertheless be the property of *71the husband and go to his representatives. (Washburn v. Hale, 10 Pick. 429.) The claim could be released by the husband. (Southworth v. Packard, 7 Mass. Rep. 95.) In January, 1858, in Barrett v. Stickles, we decided that an action could be brought against a husband alone, to compel a set-off of an award held by the plaintiff, against a judgment in favor of the defendant and his wife for an assault and battery upon the latter, upon which an execution had been issued; and that the wife was not a necessary party. The action as given by the common law in the name of the husband and wife was the action of the husband only, so long as he lived. He was a necessary party, for the reason that the legal control of and interest in the claim was in him, and the recovery was for his benefit if he chose to reduce it to possession during her life. The wife was a necessary party because she was the meritorious cause of action, and it might survive to her if not released or otherwise appropriated by the husband during his life. (Bac. Abr., Baron and Feme K. Browne on Actions, 242.) If husband and wife were joined improperly, it was ground of error or of demurrer. (Staley v. Barhite, 2 Caines, 221. Lewis v. Babcock, 18 John. 443. 1 Ch. Pl. 75.) It is not simply a misjoinder of parties; for in actions of tort in general, the misjoinder of parties plaintiff could only be pleaded in abatement. And yet, if a husband brought an action alone, for a personal injury to the wife, he would have been nonsuited, and because there was no cause of action in him independently of his wife. (1 Ch. Pl. 75.) The objection would have been one of substance, going to the foundation of the action, upon the ground that no cause of action existed in favor of the plaintiff against the defendant. The statement in the complaint in this action is of a cause of action in which, at common law, both plaintiffs had an interest, and to recover for which both must have joined as plaintiffs. The facts stated constituted a cause of action, good at common law, and joint in the plaintiffs, but do not constitute a cause of action in favor of the hus*72band alone, and it is in no sense the action of the wife, although she is a necessary party, upon the theory on which the action is brought. But the statute (Laws of 1860, p. 158, § 7) has essentially changed the rights of the husband and wife, in respect to torts committed upon the person or character of the wife, and has made her the sole plaintiff in actions brought for them, and given her the exclusive right to the damages and recovery therefor, and has taken from the husband all right to or control over the damages in actions brought for such injuries. Assaults and batteries and slanders are now made a part of the separate estate of the wife, and in respect to them she is as a feme sole. Under this statute, then, there was no cause of action in the plaintiffs, upon the facts stated, and the demurrer was well taken for that reason. It is true that where all the parties plaintiff do not show an interest in the cause of action, this is in one sense a misjoinder of plaintiffs, but in a more important sense it is a failure to make a case entitling the plaintiffs to recover against the defendant; and hence in such cases, before the code, parties thus caught would have been nonsuited. Sow, under the provisions of the code, judgment may be given for one plaintiff and against the other, if the objection is taken upon the trial by motion for a nonsuit or otherwise. (Code, § 274.) And if the objection appears upon the face of the complaint and is taken by demurrer, an amendment may be allowed upon terms, in ordinary cases. (Id. § 173.) The demurrer was necessarily to the whole complaint, and to the cause of action as therein alleged, in favor of both plaintiffs. A demurrer could not be interposed as against one plaintiff, and an answer as to the other. A party cannot plead, and demur to the same pleading. Upon the ground that the facts alleged do not constitute a cause of action entitling the plaintiff to a judgment, the demurrer should have been allowed and judgment given for the defendant. If the wife desired to make the action her own, and the plaintiffs elected to amend by strildng out the name of the husband, *73leave should have been given, in terms. But the justice at special term gave judgment for both plaintiffs, deciding, in effect, that the action was properly brought and the plaintiffs entitled to judgment. A judgment in this action would not bar an action at the suit of the wife; and at least the judgment should have been for the defendant, against the husband, under section 274 of the code, and in accordance with Peabody v. Washington Co. Mutual Ins. Co., (20 Barb. 339.) The more correct judgment would have been for the defendant, with leave to the plaintiffs to amend, if the wife chose to make the action her own, and prosecute it for her separate benefit.
I doubt, although it is not necessary to decide that question, whether a judgment could be given in favor of the wife and against the husband in an action brought by them as joint plaintiffs. (See Dunderdale v. Grymes, 16 How. P. R. 195.) The superior court of New York have decided that in a joint action by the husband and wife for the recovery of land, no separate judgment can be given in favor of the wife and against the husband. They must recover jointly or not at all, (Bartow v. Draper, 5 Duer, 130;) a decision entirely applicable in principle to this and every other joint action by husband and wife. That husband and wife cannot unite in an action in respect to matters concerning her separate estate, and for which she is authorized to sue alone, is well settled. (Smith v. Kearney, 9 How. 466. Brownson v. Gifford, 8 id. 389. Ackley v. Tarbox, 29 Barb. 512. Shumway v. Cooper, supra.) If it was not a case in which judgment could have been for one of the plaintiffs and against the other, clearly judgment should have been for the defendant.
The case was mainly argued as if the objections were to the misjoinder of parties, and the question was made whether the objection to the joinder of too many parties as plaintiffs could be taken by demurrer as for “ a defect of parties.” (Story’s Eq. Pl. §§ 541, 544.) But, in the view taken of the *74case, it is not necessary to consider or pass upon this question. I am of the opinion, 1. That when two or more plaintiffs unite in bringing a joint action, and the facts stated do not show a joint cause of action in them, a demurrer will lie, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, (Code, § 144;) and 2. That when husband and wife unite in bringing an action, and the conrplaint shows that one alone must bring the action without the other, a demurrer will lie for the same reason.
"The order at special term must be reversed, and judgment given for the defendant, with leave to the wife, if she elect so to do, to amend by striking out the name of the husband, and making the complaint conform to such change of parties, and proceed in the action in her own name, on payment of costs.
Morgan, J. (dissenting.)
It must be conceded that the demurrer is well taken, if we are at liberty to test it by the rules of pleading which prevailed before the code of procedure.
The legal existence of the wife was formerly swallowed up in that of the husband; and the damages in this action, when recovered, would have belonged to him. By the statute, (Laws of 1860, p. 158, § 7,) the damages claimed in the complaint, now belong to the wife “ the same as if she were sole; and the money received upon the settlement of any such action or recovered upon a judgment shall be her sole and separate property.” And the action may be “ in her own name for the damages.”
Whatever may have been the rule before, the husband is now an unnecessary party. But if the action should proceed to judgment in the name of both, I am unable to see how the defendant is prejudiced by it, any more than in any other case where there are too many plaintiffs. It is said *75that the judgment would not bar a subsequent action by the wife. This assumes that it is still his action, and not her’s.
But if we are disposed to give her what the statute says belongs to her “the same as if she were sole,” then it is her action, to all intents and purposes. He can acquire no interest in it, because he is a formal party to the record.
When this case was before me at special term, I undertook to show that the legislature had substantially divorced man and wife, so far as to give her an independent standing in court, without husband or next friend to protect her. She is no longer dependent upon her husband, and her legal existence is no longer swallowed up in his.
We might as well therefore treat her as any other party, and give her the benefit of § 274, by allowing her to take a judgment in her own name, as well when she joins her husband with her as when she joins any other person with her, as co-plaintiff.
The question still remains as to the proper mode of getting rid of the husband; for it must be conceded that he no longer has an interest in the damages, and ought not to be joined with her in the action. If he was sole plaintiff, then the code provides that he may be disposed of by a demurrer; for the facts are not sufficient to constitute a cause of action in his favor. It is not however true that the complaint fails to state a cause of action. It does state it, and the proper party is before the court. It may therefore- be treated as the ordinary case, where the cause of action is well stated in the complaint, but one of the plaintiffs has no interest in the recovery, and his name, for that reason, should be stricken out of the record.
This may be done on motion under section 173 of the code. By that section the court may strike out the name of any party, before or after judgment, on such terms as may be proper. But I think it is not the office of a demurrer, as defined by the code, to take such an objection. (20 Barb. 339, 342. 1 Kern. 294. 3 Smith, 303, 4.)
*76[Onondaga General Term,
April 8, 1861.
The result is, that if the action is to be treated as the action of the husband, the demurrer is well taken; for he has no interest in it. I am unwilling, however, to retain a technical difficulty of this nature, as I believe the code and the several statutes in relation to married women, have so far modified the rule of the common law as to give the wife a standing in court, which we are required to recognize and protect, against the common law marital rights of the husband. If the action is to be treated as her action, as I think it must be, then the objection cannot be reached by demurrer.
Order appealed from reversed.
Bacon, Allen, Mullin and Morgan, Justices.]