Whitney v. Whitney

3 Abb. Pr. 350, 49 Barb. 319

Opinion

By the Court.

*—Miller, J.

The plaintiff’s complaint in this action sets forth with some particularity the nature of the plaintiff’s claim and its origin. It appears thereby that the plaintiff was the Owner of considerable property, part and most of which consisted of a house and lot which had been exchanged for another parcel of real estate. That she sold the house and lot, and that a portion of the avails of the sale, in bank bills, was placed by her, on retiring to bed at night, in a pocket-book, under her pillow, and was taken from there by the defendant, before she arose on the following morning, and disposed of and converted to his use. She asks judgment for the amount thus taken, against the defendant. It will be seen that the complaint is not in the ordinary form of a complaint in an action of trover for the conversion of personal property, but is drawn to conform to the facts as they are alleged to exist.

I am inclined to think that the action can be maintained in the form in which it is presented in the pleadings. At common law the wife could not maintain a civil action against her husband, but in equity she could maintain an action against her husband for the protection of her property and to restrain him from its improper use and destruction. (Freethy v. Freethy, 42 Barb., 641.) He was also liable to account to her for her separate estate received by him without her knowledge ; and equity would interfere to protect her in the enjoyment of it. (Clancy, Rights of Marr. Wom., 35; Devin v. Devin, 17 How. Pr., 514.)

If, before the Code was enacted, the defendant had appropriated his wife’s property without her knowlege or consent, or if he had threatened its destruction, or injury to it, there cannot, I think, be any doubt but what he would be hable to a suit in equity to compel him to return it, or to prevent his improper interference with it. Now, by the Code, the distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished. There is to be but one form of action for the enforcement and protection of private rights and for the redress of private wrongs. (Code, § 69.) The remedies, therefore, heretofore sought in a court of equity, are now only to be obtained by the ordinary forms of proceedings according to the established practice of the court. By that practice ah forms of pleading previously existing were abohshed. (Code, § 140.) And it was provided that the complaint should contain a statement of the facts constituting the cause of action, and a demand of the rehef to which the party claimed to be entitled. (Code, § 142.)

In the case under consideration the facts are stated as they are supposed to exist, and I do not discover but that they are presented in conformity with the provisions cited, and the design and intentions of the law makers to simplify pleadings so as to present briefly a concise statement of the ease.

The only objection which it seems to me can be urged with any appearance of being well founded, against the complaint is, that a money judgment is demanded. Is there any foundation for this objection? The money was actually taken, and the plaintiff seeks to recover it back. If the circumstances alleged are established upon a trial, the judgment of the court should be that the money be refunded, or that the plaintiff have judgment for the amount.

If the prayer for relief had been for an accounting, then the decree would have been that the defendant pay over the money, if the plaintiff was successful; so, in reality, it makes no sort of difference. Whatever the prayer for relief may be, the judgment of the court will be according to the facts alleged and proved. And even if the party err in the nature of the relief demanded, the court will grant it according to the facts proved. (Emory v. Pease, 20 N. Y., 62 ; Dwight v. Newton 10 Id., 51; Denman v. Prince, 40 Barb., 219.) I think, at common law, this action was maintainable in equity, and as the Code has abolished the distinction between equitable actions and actions at law, and the old forms of pleadings, that a case is presented in the plaintiff’s complaint which makes out a good cause of action. The complaint therefore is not demurrable.

If I am correct in the views which I have expressed, then it is not necessary to examine the question whether the action can be maintained under the act of 1862. The order of the special term should be affirmed and judgment rendered for plaintiff on the demurrer, with leave to the defendant to answer on payment of costs.

Peckham, J., concurred in the result

Hogeboom, J., dissented.

Judgment affirmed

Present—Peckham, Miller and Hogeboom, JJ.