Mann v. Marsh
New York Supreme Court
APPEAL from a judgment entered at a special term, before Morgan, J. overruling a demurrer to the complaint. Action by husband and wife, commenced in June, 1860, for an assault and battery committed upon the wife on the 22d day of May, 1860. Among the causes of demurrer alleged were, that the plaintiffs had no legal capacity to sue; that there was a defect of parties plaintiff; that the action should have been in the name of the wife alone, and the husband was wrongfully…
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APPEAL from a judgment entered at a special term, before Morgan, J. overruling a demurrer to the complaint. Action by husband and wife, commenced in June, 1860, for an assault and battery committed upon the wife on the 22d day of May, 1860. Among the causes of demurrer alleged were, that the plaintiffs had no legal capacity to sue; that there was a defect of parties plaintiff; that the action should have been in the name of the wife alone, and the husband was wrongfully joined with her in the action; and that the complaint did not state facts sufficient to constitute a cause of action.
1Opinion of the CourtAllen, 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…
2Cases cited6 opinions
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- Lewis v. BabcockNew York Supreme Court · 1821
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- Ackley v. TarboxNew York Supreme Court · 1859
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3Cited by16 opinions
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- Goodnight v. GoarIndiana Supreme Court · 1868
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