Ackley v. . Tarbox

31 N.Y. 564

• Court: New York Court of Appeals
• Decided: June 5, 1864
• Status: Published

Opinions

Davies, J.

It is manifest from the complaint that the action in' fact was that of Demarias Ackley, in relation to her separate property, and that Warren Ackley was made a party plaintiff, solely as her husband, and a nominal party only. At the time this action was commenced, it was not as well settled as it is now that the wife, for injuries to her separate property, may maintain an action in her own name without joining her husband. He was undoubtedly made a party plaintiff, ex ábundcmte cautela, and to obviate any objection which might have been made by the defendants, that the action could not be maintained by the wife without joining the husband. He was clearly an unnecessary party, and his name on the record could produce no embarrassment to the defendants. He claimed no interest in the subject matter of the controversy, and, in fact, was not a party litigant. His presence upon the record was a matter of supererogation. Section 173 of the Code was framed to meet a case like the present. It declares that the court may, before or after judgment in furtherance of justice, amend any pleading, process or proceeding, by adding or striking out the name of any party. As soon as the objection was taken that the husband was an unnecessary party, as he clearly was, it was the duty of the court to have stricken his name from the proceedings in the action. It can now be done, and the judgment stand as it ought, a judgment in favor of the wife for injury to her personal property.

The judgment of the Supreme Court should be reversed, and the judgments of the county court and the justice’s court affirmed.