EXNER v. EXNER

EXNER v. EXNER. N. Y. Supreme Ct., First Department; Chambers, June, 1876. Complaint.—Cause op Action.—False Imprisonment.—Irrelevant Allegation.—Pleading. In the complaint in an action for false imprisonment, an allegation of a conspiracy of two of the defendants to imprison plaintiff, and that in pursuance thereof two other defendants were employed to make the arrest, is not irrelevant. Allegations that defendants entered plaintiff’s house and arrested her, and another that they forcibly removed her therefrom and took her to jail, constitute only one cause of action, In an action action for false imprisonment, an allegation, in addition to the general averment of personal injury, that plaintiff was prevented from performing certain domestic duties; Held, irrelevant. Motion to make complaint more definite and certain, and to strike ont irrelevant matter. Augusta Exner, the plaintiff, brought an action for $5,000 damages, against Julia Exner, Christian L. Schwartz, Walter Thorn, and Williahi Stratton, for false imprisonment. The complaint alleged: “First. That on or about April 21, 1875, the above-named defendants, Julia Ex-ner and Christian L. Schwartz, wickedly and maliciously conspiring, contriving and intending to injure this plaintiff, and to deprive her of her liberty, did instigate and employ the defendants, Walter Thorn and William Stratton, to seize upon and arrest the person of this plaintiff, and by force and arms to take her from her home and children, in the city of Brooklyn, and deprive her of her liberty against her will, and in violation of the laws of the State of. New York. “Second. That in pursuance of such wicked and malicious conspiracy, the said defendants Thorn and Stratton, acting as the agents, and under the directions pf the defendants Exner and Schwartz, and aided and abetted by them, did on or about the said 31st day of April, 1875, enter into the dwelling-house and residence of this plaintiff, in the city of Brooklyn and State of New York, and did then and there violently and with force and arms, seize upon and arrest the plaintiff, and did then and there wrongfully and unlawfully, and against the will and remonstrance of this plaintiff, forcibly remove this plaintiff from her said home and her family, and convey her to the common jail of the county of Kings, and State aforesaid, and incarcerated and imprisoned her therein for the space and period of one night and parts. of two days, without any cause, and without any right or authority so to do, and against the will of the plaintiff. “ Third. That by reason of such wrongful acts of these defendants, this plaintiff was greatly injured in mind and bodily health, and in her good name, fame, and reputation, and was thereby prevented from attending upon her children (one of whom was very ill), and her necessary affairs and business, and was otherwise severely injured and damaged thereby.” The defendant moved that the first paragraph of the" complaint should be stricken out as irrelevant and redundant; that the allegation in the second paragraph should be made moré definite and certain, so that the precise nature of the charge be made apparent, whether a trespass upon lands was intended to be charged, and that the alleged injury to the person in the same paragraph should be stated separately from the other matter charged therein; and that the words, “and was thereby prevented from attending upon her children (one of whom was very ill),” should be stricken out as irrelevant. John J. Townsend, for the motion. D. C. Birdsall (Birdsall & Friend), opposed. S. P., Ives v. Humphreys, 1 E. D. Smith, 196. S. P., Bebinger v. Sweet, 1 Abb. N. C. 263, and cases there cited; and Sheldon v. Lake, 9 Abb. Pr. N. S. 306 ; Colton a. Jones, 7 Robt. 164, 249. [MAJORITY — Lawrence, J.] Lawrence, J. The first paragraph in the complaint I do not regard as irrelevant, nor does the complaint seem to me to be subject to the objections taken to the complaints in Eddy v. Beach (7 Abb. Pr. 18), and Shaw v. Jayne (4 How. Pr. 119). In those cases the pleader had set forth at great length the evidence by which he intended to substantiate the fact of his illegal imprisonment by the defendants, or through their instigation. Here there is a charge of a conspiracy on the part of two of the defendants to imprison the plaintiff, and that, in pursuance of such conspiracy, the other two defendants were employed to make the arrest. The second paragraph does not appear to set forth more than one cause of action when fairly construed, that cause of action being for an illegal or false imprisonment. The objection to the allegation that the plaintiff was prevented from attending to her children, one of whom was very ill, seems to be well founded. The allegation is irrelevant, and should be stricken out. Motion is granted to the extent above indicated ; no costs.