Ward v. Ward

Decided December 15, 1868

New York Supreme Court · decided 1868-12-15

Demurrer to amended complaint. The action was brought by John A. Ward against Amelia C. Ward. The plaintiff in the first four paragraphs of the amended complaint, averred that the parties were married, had one child, and that the defendant had without his consent abandoned him. The fifth paragraph “for a further cause of action,” averred the adultery of the defendant.

Decided 1868-12-15

Ingraham, J.

¶1—There is but one cause of action stated in this complaint, viz: the adultery. The allegation that the defendant has abandoned and deserted her husband is no ground of divorce, and is improperly inserted in the complaint, but it is not stated as a cause of action, nor is any relief asked for on account of that fact.

¶2The statement in the 5th paragraph, “ that for a further cause of action he states, &c.,” does not show that there are two causes in the complaint (Hillman v. Hillman, 14 How., 456).

¶3The proper rule is laid down in Meyer v. Lent, 7 Abb. Pr., 225, viz: that in such cases the remedy is by motion, and not by demurrer.

¶4Judgment for plaintiff on demurrer, with leave to answer, &c., and without prejudice to a motion to strike out.