Tim v. Tim — 16 Abb. Pr. 39

Majority

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TIM against TIM.

Supreme Court, First Department, First District,

Special Term;

July, 1874.

Headnote

Divorce.—Pleading.

In an action for divorce, allegations of adultery committed with persons unknown to the party pleading, must, nevertheless, state specifically times and places.

A motion to make the pleading more definite and certain will be granted, if the allegation is in the form of a charge of common and

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notorious prostitution, at a certain date and thereafter during the-whole of a period indicated, in a certain city.

Irene Tim sued in this court Solomon Tim for a divorce a vinculo, on the ground of defendant’s adultery.

The answer contained eight defenses, alleging that plaintiff was not defendant’s wife, and that he was never-married to her, and denied any act of adultery on his part.

The fourth defense alleged that the plaintiff’s name-was not Irene Tim, but was Irene Ashton.

The fifth defense was as follows : “That on the 20th day of March, 1869, the plaintiff was and ever since has been a common and notorious prostitute, and has, during all that time, openly and notoriously prostituted herself for hire ; and has, during all that time, at divers places in the city of New York, committed adultery with divers men, but with what particular men, or at what particular places in said city, this defendant is now unable to state more definitely.”

The sixth defense was an admission by defendant that he had committed “adultery” with the plaintiff, but alleged that she was his mistress and not his wife,. &c.

The seventh defense alleged that he was engaged! to be married to a respectable young lady, and the-plaintiff becoming aware of the same threatened to expose defendant’s “adulterous” intercourse with her, and he, fearing exposure, paid her the sum of eight hundred dollars, and obtained from her a general release of all claims.

The eighth defense charged that the action was only brought to extort money.

Upon motion, Mr. Justice Doitohite struck out the-fourth, sixth, seventh, and eighth defenses, as irrelevant and redundant, holding that there but two ques

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tions under the pleadings which were properly in issue, and material:

First. Was the plaintiff the wife of the defendant ?

Second. If she was, did plaintiff, or defendant, or both, commit adultery ? The motion to make the fifth. defense more definite and certain is now made.

George F. and J. Q. Julius Langbein, for plaintiff, for the motion.

William F. Howe, for defendant, opposed.

The fifth paragraph of the answer must be more definite and certain, by stating the times when, and the places at which, the plaintiff committed the alleged adulteries.

The adultery of the plaintiff must be set up in an answer in the same manner, accompanied with the same allegations, as required when the defendant is charged in a complaint with the commission of adultery (Monnell v. Monnell, 3 Barb., 236 ; and see Anonymous, 17 Abb. Pr., 48 ).

In Hyde v. Hyde, 4 Sandf., 622 , an allegation, “that the defendant, in Hovember, 1851, committed the offense in the city of New York, with a female whose name is unknown to the plaintiff, and the particular circumstances of which are unknown to the plaintiff,” was held to be insufficient; and it was further held, .that “ if the person be unknown, the complaint should state specifically the place where the offense occurred, and at a house specified, or the like.” In this case the defendant avers that the parties, with whom the adulteries alleged were committed, are unknown to him; and under the authority just cited, he is, perhaps, warranted in making the allegation in that respect, in the form in which it is made, but he is not warranted in omitting

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to state in his answer the times and places at which the offenses were committed.

Motion granted, to the extent above stated, with ten dollars costs of motion.