It must be conceded that the demurrer is well taken, if we are at liberty to test it by the rules of pleading which prevailed before the code of procedure.
The legal existence of the wife was formerly swallowed up in that of the husband; and the damages in this action, when recovered, would have belonged to him. By the statute, (Laws of 1860, p. 158, § 7,) the damages claimed in the complaint, now belong to the wife “ the same as if she were sole; and the money received upon the settlement of any such action or recovered upon a judgment shall be her sole and separate property.” And the action may be “ in her own name for the damages.”
Whatever may have been the rule before, the husband is now an unnecessary party. But if the action should proceed to judgment in the name of both, I am unable to see how the defendant is prejudiced by it, any more than in any other case where there are too many plaintiffs. It is said *75that the judgment would not bar a subsequent action by the wife. This assumes that it is still his action, and not her’s.
But if we are disposed to give her what the statute says belongs to her “the same as if she were sole,” then it is her action, to all intents and purposes. He can acquire no interest in it, because he is a formal party to the record.
When this case was before me at special term, I undertook to show that the legislature had substantially divorced man and wife, so far as to give her an independent standing in court, without husband or next friend to protect her. She is no longer dependent upon her husband, and her legal existence is no longer swallowed up in his.
We might as well therefore treat her as any other party, and give her the benefit of § 274, by allowing her to take a judgment in her own name, as well when she joins her husband with her as when she joins any other person with her, as co-plaintiff.
The question still remains as to the proper mode of getting rid of the husband; for it must be conceded that he no longer has an interest in the damages, and ought not to be joined with her in the action. If he was sole plaintiff, then the code provides that he may be disposed of by a demurrer; for the facts are not sufficient to constitute a cause of action in his favor. It is not however true that the complaint fails to state a cause of action. It does state it, and the proper party is before the court. It may therefore- be treated as the ordinary case, where the cause of action is well stated in the complaint, but one of the plaintiffs has no interest in the recovery, and his name, for that reason, should be stricken out of the record.
This may be done on motion under section 173 of the code. By that section the court may strike out the name of any party, before or after judgment, on such terms as may be proper. But I think it is not the office of a demurrer, as defined by the code, to take such an objection. (20 Barb. 339, 342. 1 Kern. 294. 3 Smith, 303, 4.)
*76[Onondaga General Term, April 8, 1861.The result is, that if the action is to be treated as the action of the husband, the demurrer is well taken; for he has no interest in it. I am unwilling, however, to retain a technical difficulty of this nature, as I believe the code and the several statutes in relation to married women, have so far modified the rule of the common law as to give the wife a standing in court, which we are required to recognize and protect, against the common law marital rights of the husband. If the action is to be treated as her action, as I think it must be, then the objection cannot be reached by demurrer.
Order appealed from reversed.
Bacon, Allen, Mullin and Morgan, Justices.]