Broome v. Taylor

16 N.Y. Sup. Ct. 155

• Court: New York Supreme Court
• Decided: December 15, 1876
• Status: Published

Opinion

PRATT, J.:

The complaint nowhere alleges the coverture of the defendant Helen, at the time she executed the bond.

The caption of the complaint describes the defendant James as her husband.

'But-that can only be held to refer to the time when the action is brought.

The complaint contains a copy of the bond, in which defendant Helen is described as the wife of defendant James.

But the pleader does not thereby allege that she was his wife, merely .that she executed a paper in which she was so described, in other words, that on a certain occasion, she called herself his wife. If the coverture existed, and was relied on as a defense, it should be distinctly pleaded.

Suppose defendant Helen had pleaded in bar to the complaint, that at the time she made the bond, she called herself a married woman.

That allegation would be the exact equivalent of the one now relied on to show her coverture.

It would be no defense to her bond, when pleaded as an answer, and it is no defect in the complaint that it appears therein.

Order affirmed, with costs and disbursements.

Present — Pratt and Dyeman, J J. BarNArd, P. J., not sitting.

Order overruling demurrer affirmed, with costs.