This case coming on for trial, the court dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the judgment entered was affirmed at the Appellate Division. The complaint alleged:
"First. That the defendant is an infant of the age of seven years.
"Second. That the plaintiff, between the 27th day of April, 1893, and the 20th day of June, 1897, both dates inclusive, furnished and supplied the defendant, upon the defendant's request and implied promise to pay therefor, with board and lodging at No. 57 Dey Street, in the city of New York.
"Third. That the said board and lodging were `necessaries' and of the reasonable value of $3 per week or in all of $659.14, and were of a character suited to the position in life of the defendant. That there has been paid on account of said sum of $659.14 the sum of $8.
"Fourth. That there is now due and owing, by virtue of the premises, by the defendant to the plaintiff the sum of $651.14, with interest thereon from June 20th, 1897, no part of which has been paid."
The affirmance by the Appellate Division is placed on the ground that "There is no allegation in the complaint that the *Page 291 father refused or was unable to pay for the board and lodging furnished by the plaintiff." (Goodman v. Alexander, 28 App. Div. 227. )
It does not appear that the infant had a father or any other relative whose legal duty it was to feed and clothe her, and so the question presented is, whether in addition to alleging facts upon which the plaintiff's claim was founded, the pleader should have gone further and alleged that defendant had no father or other person standing in loco parentis who both could and should support her, and, of course, what the plaintiff should allege he must prove in order to obtain a judgment. If it were necessary in all actions against an infant to allege and prove that there were no persons upon whom the law placed the responsibility of feeding and clothing the infant, if able to do so, not only would a voluminous complaint be required, but in some cases the plaintiff would find the burden of making the necessary proof quite substantial; for the statutes of this state contain a number of provisions relating to the duty of parents and others to support infants, among which may be found the following:
Section 921 of the Code of Criminal Procedure in substance provides that if a father, a widowed mother, or a mother living apart from her husband absconds, leaving children a charge on the public, his or her property is liable for the support of such children.
Chapter 175 of the Laws of 1893 provides: "Every married woman is hereby constituted and declared to be the joint guardian of her children with her husband, with equal powers, rights and duties in regard to them with the husband."
Section 64 of the Domestic Relations Law (Chapter 48 of the General Laws) provides that when a child is adopted, it shall take the name of the person adopting, and the two thenceforth shall sustain toward each other the legal relation of parent and child.
By section 2821 of the Code of Civil Procedure the Surrogate's Court has power to appoint a general guardian of the *Page 292 person and property of an infant, even if the parents are living, and it has been held (Clark v. Montgomery, 23 Barb. 465) that it is the duty of the general guardian of an infant to provide for the support, maintenance and education of the infant out of his estate, notwithstanding the infant has a father living, provided the father is poor and unable to support him. "He standsin loco parentis." (Id. 472.)
No case is cited in support of the proposition that a complaint does not state a cause of action, which omits to allege that there are not in existence any persons occupying such a relation towards the infant as makes it their legal duty to feed and clothe the infant, and if there were such a case it would be in conflict with the practice established by decisions for a long period of time.
That the obligation rests upon a father, or other person standing in loco parentis, who has the ability to do so, to support his infant children even though they have an estate of their own, and that, therefore, one who furnishes board and lodging to infants so situated cannot recover against them, is well-settled law. That, however, is not the question involved here; which is, whether the complaint must allege either the non-existence of any person standing in such relation to the infant as to bear the obligation to supply it with necessaries, or that, if existing, such person was unable to do so. As the question is one of pleading, we observe in the first place that at common law in an action to recover against an infant for necessaries, the declaration was required to contain only counts as in an action for debt for board and lodging, or goods furnished. If the defendant by his plea set up infancy as a defense, the plaintiff in his replication alleged that the articles furnished were necessaries, and the trial proceeded to judgment in accordance with the truth of the matter. (Chapple v. Cooper, 13 M. W. 252; Burghart v. Hall, 4 id. 727;Brooker v. Scott, 11 id. 67; Ryder v. Wombwell, L.R. [4 Ex.] 32; Maddox v. Miller, 1 M. S. 738; Bacon's Abr. vol. 5, p. 120, and cases cited; Beeler v. Young, 1 Bibb [Ky.], 519; Glover v. Ott, 1 McCord, 572.) *Page 293
The practice of the common law governed in this jurisdiction down to the time of the adoption of the Code, and until that time, therefore, the facts alleged in this complaint would have been well pleaded, if stated in a declaration. We are next to inquire, therefore, whether that section of the Code which provides that the complaint (which takes the place of the declaration at common law) shall contain a plain and concise statement of facts constituting the cause of action (section 481) requires a different or more complete statement than the declaration formerly required. The general understanding has been that the Code was not intended to exact a more formal complaint than was required at common law, but instead to abolish the forms, technicalities and fictions of that practice. In Moak's Van Santvoord's Pleadings it is said (at p. 28) that "the simple, logical mode of statement used by the pleader in the old common-law declarations and pleas without regard to form, will be in most cases sufficient; and so the rule has been understood and held to be under the Code." Again (at p. 203), it is said: "The conclusion arrived at is that the old common-law count in debt, and not indebitatus assumpsit, is the proper form of complaint under the Code; and it seems to me that this conclusion must be admitted to be correct and logical in all cases where it is not designed to prove on the trial an express promise, and where, under the limitations above given, the common count may be used as expressing precisely the fact, by the proof of which, it is intended to sustain the demand." And again (at p. 204) the author sums up the result of his examination of the authorities on the subject subsequent to the adoption of the Code as follows: "In all cases where the money counts heretofore might have been used, the plaintiff may still set forth his cause of action in this form."
But we are not without authority in this court upon this precise question of pleading, for in Zabriskie v. Smith (13 N.Y. 322) the court (at p. 330) says: "Under our present system of pleading, I conceive that the complaint should contain the substance of the declaration under the former system." *Page 294 This language was quoted with approval in Conaughty v.Nichols (42 N.Y. 86), and I deem it quite safe to say that neither decision nor expression to the contrary can be found in the reports of this court. The conclusion reached by us, that the complaint stated a cause of action, does not seem to require other support in authority; but it might not be out of place to cite in this connection some of the many cases in which actions against infants, that resulted in awards of judgments to the plaintiffs, have been tried upon complaints which did not contain allegations anticipating either the defense of infancy, or that there were persons in existence standing in loco parentis whose duty it was to supply the infant with necessaries, but were in the main in the general form of the declaration of the common law in actions for debt. (Lynch v. Johnson, 109 Mich. 640;Locke v. Smith, 41 N.H. 346; Guthrie v. Murphy, 4 Watts [Pa.], 80; Tupper v. Cadwell, 12 Met. [Mass.] 559; Trainer v. Trumbull, 141 Mass. 527; Angell v. McLellan,16 Mass. 28; Thrall v. Wright, 38 Vt. 494; Wailing v. Toll, 9 Johns. 141; Atchison v. Bruff, 50 Barb. 381.)
The judgment should be reversed and a new trial granted, costs to abide the event.