Rumsey v. Lake
55 How. Pr. 339
N.Y. Sup. Ct.
1875
Check Treatment
Habdot, J.

The question raised by the demurrer in this case has been considered in the general term in this district and determined in Mann agt. Marsh (35 Barb., 68), and a like question in Richtmyer and Richtmyer (50 Barb., 55), and those cases must be followed and the demurrer sustained (24 How., 353). These cases are referred to by Mr. Wait in his excellent work on practice, and the rule declared therefrom laid down as the correct one (See vol. 1, Waits Practice, 115 and 120). He says: “ If there is a misjoinder of parties, or, in other words, if the facts stated in the complaint show no cause of action' against the defendants in fa/vor of one of the plaintiffs the defendant may demur, under subdivision 6 of section 144 of the Oode, as to sueh plaintiff upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and as to such plaintiff the complaint will be dismissed.” If this objection is not taken by demurrer it may be at the trial and the same result reached, in pursuance of section 214 of the' Oode, and judgment given in favor of the party plaintiff proving a cause of action, and against the party plaintiff having none (Palmer agt. Davis, 28 N. Y., 242; 50 Barb., 55). The same rule is stated by Folgeb, J., in Simon agt. Canaday (53 N. Y., 301). There is nothing in the features of People agt. Crooks (53 N. Y., 649) inconsistent with the rule laid down or declared in Simon agt. Canaday (supra).

The act of 1862 (chap. 219, sec. 3) allows a married woman to “bring and maintain an action in her own name for dam*341ages against any person or body corporate for any injury to her person or character, the same as if she were sole," and the money received shall be her sole and separateproperty. The section also provides she may give a bond in any such action as if she were sole. This section may well be considered as vesting in her the right to recover for injuries. Thus she becomes entitled to the “ property,” in the chose in action, for such injury, and thus it is that the action concerns her separate “ property ” when brought to recover for such injuries. Assuming that the action concerns her separate property as before shown, the language of section 114 of the Code applies, that “ when the action concerns her separate property she may sue alone.” “ Hay,” as used, is equivalent to “ must she being vested with the right of action the husband is divested of the interest he would have had at common law. And as she is the person solely interested in the cause of action, section 111 of the Code applies and requires every action to be brought in the name of the real party in interest, to wit, the wife. The husband has no “ property ” or “ interest ” in the right of recovery for personal injuries to the wife. True he may have an action for loss of services in certain cases, but that is an independent cause of action in his favor and should not be joined with the distinct and independent cause of action in favor of the wife. The husband and wife are not united in interest in-the same cause of action, and therefore section 119 does not apply, nor does section 117 of the Code apply.

These views lead to the conclusion reached by Allen, J., in Mann agt. Marsh (supra), and a like order must- be made sustaining the demurrer, with costs, “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 her own name on payment of costs ” (35 Barb., 74).

Note. —An appeal was taken by the plaintiff from the order sustaining the demurrer in this case, and the order was affirmed at general term in the fourth department in April, 1876. [Ed.