Majority
p. 688Emma L. Hall, Appellant, v. Augustus H. Hall, Respondent. First Department, May 31, 1912.
Headnote
Husband and wife — action for divorce —action for (separation pending — demurrer — judgment of separation no bar.In an action for an absolute divorce the defense of another action pending between the same parties for separation on the ground of abandonment and non-support is demurrable for insufficiency. A judgment in a separation action does not bar an action for an absolute divorce.
Appeal by the plaintiff, Emma L. Hall, from an order of the the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of March, 1912, overruling the plaintiff’s demurrer to a defense.
Theron L. Carman, for the appellant.
Charles Coleman Miller, for the respondent.
This is an action for an absolute divorce. The defense demurred to for insufficiency is the pendency of another action between the same parties for separation on the ground of aban
p. 689
donment and non-support. It is not even alleged that the action for separation was pending when this action was brought. But even if it were, it would not constitute a bar. The two actions are brought on different grounds for different relief. Even a judgment in the separation action would not bar an action for absolute divorce. The learned justice at Special Term denied the motion on the authority of Conrad v. Conrad ( 124 App. Div. 780 ), in which it was held that it was not proper to unite in the same complaint a cause of action for absolute divorce and. one for separation on the ground of abandonment, a proposition entirely different from the one involved on this motion.
The order should be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs.
Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs.