The complaint alleges that on
Sept. 1,1851, at Hew York City, the plaintiff was employed as a servant in the defendant’s family, and on that day the defendant, “ with force and arms, ill-treated, and an indecent assault made upon her, and then and there carnally knew her, whereby she became pregnant and sick with child, and so remained for nine months thereafter, at the expiration of which time she was delivered of the child.
“ That in consequence of such indecent assault she has suffered greatly in her health, because sick and disordered, and so continued for six months, suffering great pain; was prevented from attending to her business, and has been greatly disturbed in her peace of mind, and' otherwise greatly injured, to her damage $1000, for which judgment is demanded.”
The defendant demurs upon two grounds.
1st. That this court has no jurisdiction of the person of the defendant or the subject of the action.
2d. That the complaint does not state facts sufficient to constitute a cause of action.
For the reasons stated by Judge Brady, I am of opinion that the first ground of demurrer is untenable; but I do" not concur with him in his conclusion that the complaint states facts sufficient to constitute a cause of action.
It is a general rule in the construction of a pleading, that the court must assume that the party has stated his case in the best way in which it is capable of being stated; and this rule has not been altered by the Code (§ 159), which requires pleadings *393to be liberally construed, with a view to substantial justice between the parties.
Liberally, as here used, means, that if, from the whole pleading, it can be seen that a party has a cause of action or defence, he shall not be deprived of it because he has stated it in an improper or informal manner; but it does not mean that substantial averments may be omitted, and the omission disregarded.
It is claimed by the plaintiff that the complaint shows, as a cause of action, an mdeeent assault a/nd battery, committed by the defendant on her, whereby she was injured and sustained damage.
An action of this nature is so easily stated,—rests upon such simple facts,—that there should be no difficulty in determining whether the allegations in the complaint are such as, liberally construed, show that such a cause of action really exists.
To my mind, the complaint does not show such a cause of action. It does not in terms allege that a rape was committed upon her, and a felony of such a nature should not be presumed in the absence of the material merment that the intercourse was a famishment, to which she in nowise consented.
Kor can we infer from it that the defendant committed an assault and battery upon her, as the legal signification of the language used is, that he threatened her, without touching her person ; but it is not stated that by this threatening she was in any degree put in bodily fear.
Upon the most liberal construction of the complaint, this must be considered as an action brought for debauching and seducing the plaintiff; and as it is conceded that an action of such a nature cannot be maintained by the party seduced (Bartley a. Richmeyer, 4 Comst., 48; Whitney a. Hitchcock, 4 Den., 461), I am of opinion that the order appealed from, sustaining the demurrer, should be affirmed.