Ellsworth v. Shimer

Giegerich, J. In Hutcheson v. Peck, 5 Johns. 196, 209, in an action of this character, viz., for alienating a wife’s affections, it was said that the quo animo is the material ■point,-and in Abbott’s Forms of Pleading this -case is cited as authority for the form of allegation there employed, viz., that the defendant wrongfully contrived and intended to injure the plaintiff. That the motive with which the defendant acted is all important in cases of this; kind is apparent also from the following decisions: Barnes v. Allen, 1 Keyes, 390, 394; Whitman v. Egbert, 27 App. Div. 374; Eldredge v. Eldredge, 79 Hun, 511, although they are cases dealing with what must be proved rather than what must be alleged. But in a form of action where the intent is so- important I do not think the allegation of that intent should be left to argument and inference from language susceptible of a construction entirely consistent with the defendant’s blameJessness. 'The complaint states that the defendant alienated the affections ,of the -plaintiff’s wife and deprived him of her love and induced her to leave him. Ho improper relations [577] between the defendant and the plaintiff’s wife are in any way suggested, and for all that appears the defendant may be her father or brother, who has only performed his duty in doing what it is averred he has done or whose innocent acts have had the effects alleged. The demurrer is, therefore, sustained, with costs, with leave to the plaintiff to amend his complaint within twenty days on payment of such costs. Demurrer sustained.