
    ROEDER a. ORMSBY.
    
      Supreme Court, First District ;
    
    
      Special Term, September, 1861.
    Pleading.—Demurrer.
    A pleading cannot be demurred to on the ground of redundancy, nor indefiniteness, nor because it demands greater relief than the facts stated therein will justify.'
    
      A complaint by a father, showing that the negligence of the defendants’ servant caused the death of the plaintiffs infant child, and “ that the plaintiff was and will be compelled to pay S100 for medical attendance, funeral and other expenses, caused by the death of his son," is sufficient on demurrer under subdivision 6 of section 144 of the Code. Though no expenses can be recovered except such as are necessary and reasonable, they need not be so described in the complaint.
    Demurrer to complaint, on the ground that it did not state facts sufficient to constitute a cause of action. 1
    The facts are sufficiently stated in the opinion.
    
      John Flanagan, for the defendants.
    —I. So far as the complaint is founded upon the death of the deceased, the plaintiff has no right to sue. The administrator is the proper plaintiff. (Laws of 1847, ch. 450 ; Laws of 1849, ch. 256.)
    II. The other branch of the complaint does not show that any expense has actually been incurred, or if any, for what purposes. It is not enough to state that he was compelled to pay. (Packard a. Hill, 7 Cow., 434, 442.)
    
      W. J. A. Fuller, for the plaintiff.
    —I. This complaint contains two causes of action: 1, for the death of the child; and 2, for the expenses thereby incurred by the father. We admit that the first appertains to the administrator only.
    II. But the demurrer is., general to the whole complaint. It should have specified other grounds, and singled out the defective claim. (Wilson a. Mayor, &c., 15 How. Pr., 500 ; Butler a. Wood, 10 Ib., 222 ; Hillman a. Hillman, 14 Ib., 456 ; Eldridge a. Bell, 12 Ib., 547.)
    III. The second claim is good. (Wosley a. C. H. & D. R. R., 1 Handy, Ohio, 481.) If not stated with precision, the remedy is not by demurrer. (Richards a. Edick, 17 Barb., 260.)
   Leonard, J.

—The defendants have interposed a general demurrer to the plaintiff’s complaint.

The complaint alleges that the servants of the defendants, while driving their cart, negligently and carelessly run over the plaintiff’s son, an infant under five years of age, who died from the injuries then received.

“That the plaintiff was, and will be compelled to pay $100 for medical attendance, funeral and other expenses, caused by the death of his son.”

“ That he was also deprived of the comfort, society, fellowship, assistance, and'services of hjs son, to his loss and damage $5,000,” and demands judgment for $5,100, and costs.

The plaintiff’s counsel, on the argument, conceded that he could not recover for the loss of thé comfort, society, fellowship, assistance, or services of his son. This admission, frankly made, supersedes the necessity for considering that portion of the complaint.

The defendants’ counsel, with equal frankness, admits the plaintiff’s right to recover for necessary expenses actually incurred for medical attendance, and for reasonable funeral charges, required by the injuries complained of, or by the death of the plaintiff’s son, but insists that the averments of the complaint are defective in these respects.

The language is somewhat inartificial, but it indicates sufficiently what are the expenses for which the plaintiff claims to recover. If a party will be compelled to pay the expenses referred to, I think we may say they have been incurred. The plaintiff can recover only for such expenses.as are necessary and reasonable, but the omission of these words will not in this case vitiate the complaint. Some amount must inevitably have been incurred for the funeral charges. The “other expenses” mentioned can be ascertained by a bill of particulars if the defendants require it; or the plaintiff may be required to make his complaint more definite and certain.

The demurrer is general to the whole complaint, alleging only that it does not state a cause of action.

I think a good cause of action has been stated in respect to these expenses.

A claim for injuries or damage for which no recovery in this action can be had, will not render the whole complaint vicious, if there is any damage mentioned which legitimately flows from the act complained of. The allegation or claim for damages by reason of the death of the child must be considered as surplusage or irrelevant matter. It is not a separate or distinct count. It might be stricken out on motion.

There being sufficient facts stated to constitute a cause of ae tion, the demurrer must be overruled, with leave to the defendants to answer in twenty days.

In case the plaintiff amends his complaint, the costs of the demurrer will abide the event of the action. Otherwise, the order will direct the payment of costs by the defendants.  