Burdell v. Burdell — 2 Barb. 473

Majority

p. 473

Same Term.

Edmonds, Justice.

Burdell vs. Burdell.

Headnote

To justify the granting of an application by the defendant, in a suit for a separation, for leave to set up as a defence the adultery of the plaintiff committed since the putting in of the defendant’s answer, the court requires very cogent circumstances, pi)d such as repel the notion of any attempt to evade the justice of the case, or to set up new and ingeniously contrived defences or subterfuges.

Before granting such an application the court should he satisfied that the reasons assigned for the application are well founded; that the facts to be added are highly probable, if not certain; that they are material; that the party has not been guilty of negligence; and that the facts have come to his knowledge since the original answer was sworn to.

Where facts have occurred, since the filing of the defendant’s answer, which constitute a defence to the suit, the proper way for the defendant to avail himself of such facts, is to obtain an order that the cause stand over until he can put them in issue by a cross-bill; which must he brought to a hearing with the original suit.

In EauiT v. On a bill filed by the wife, against her husband, for a separation on the ground of cruelty and desertion on his part, the defendant put in an answer setting up the plaintiff’s bad conduct. After his answer was filed, he applied for leave to

p. 474

put in a supplemental answer, alleging adultery on her part, committed since he had put in his answer.

E. Pierpoint, for the defendant.

C. Edwards, for the plaintiff.

There are two valid objections to granting this motion. 1. The fact of adultery charged is not made out. All may be true that is alleged in the affidavits on the part of the defendant, and yet the plaintiff be entirely innocent. To justify the granting of such an' application, the court requires very cogent circumstances and such as repel the notion of any attempt to evade the justice of the case, or to set up new and ingeniously contrived defences or subterfuges. Before allowing it, the court should be satisfied that the reasons assigned for the application are well founded, that the facts to be added'are highly probable if not certain ; that they are material; that the party has not been guilty of negligence; and that the facts have come to the party’s knowledge since the original answer was Sworn to. (Smith v. Babcock, 2 Sumn. Rep. 583 .)

2. The other objection to the application is that the facts sought to be set up, having happened subsequent to the answer, cannot with propriety be put in issue by a supplemental answer. The proper way for the party to avail himself of these facts, if the court was satisfied that they could be of advantage to him, would be to obtain an order that the cause stand over until a new bill, in which the facts could be put in issue, could be brought to a hearing with the original suit. (Story’s Eq. Pl. § 903. Mitf. Pl. 329.) The chancellor, in Smith v. Smith, (4 Paige, 438,) expresses an opinion that the defence may be set up on supplemental answer, but the point was not before him, and his remark was obiter. While on the other hand, Story and Lord Redesdale, both good authority, lay down the rule as I have stated it. See also 2 Dan. Ch. Pr. 914, aqd Taylor v. Titus, ( 2 Edw. Rep. 135 ,) where the point was expressly ruled.

Motion denied, with costs.