Burdell v. Burdell — 3 How. Pr. 216

Majority

p. 216

Margaret Burdell vs. John Burdell.

Headnote

On an application for leave to put in a supplemental answer, alleging adultery on the part of the Plaintiff after the original answer is put in, the Defendant must show to the court that the reasons assigned for such application are cogent and satisfactory, that the facts to be added are highly probable, if not certain.

But if such facts happened subsequent to the answer, the proper remedy for Defendant

p. 217

is to obtain an order that the cause stand over until a new bill, in which the facts can be put in issue, can be brought to a hearing- with the original suit. (Story’s Eq. PL, § 903; Milford’s Pl. 329.)

February Special Term, 1848.

New York county.

A bill was filed for a separation between husband and wife on the ground of cruelty and desertion on his part; he put in an answer fitting up her bad con-o put in a supple-d since he had duct. After his answer was in, he mental answer, alleging adultery put in his answer.

E. PlERPONT, for Defendant,

C. Edwards, for Plaintiff. M

There are two valid objections granting this motion.

1. The fact of adultery charged, is not madé out. All may be true that is alleged in the affidavits on the part of the Defendants, and yet the Plaintiff be entirely innocent. To justify the granting of such an and such as case,;ipf is. Before Ifsigned-fpr fe adduced' •W* application, the court requires very cogent cir repel the notion of any attempt to evad^ set up new and ingeniously contrived allowing it, the court should be satisfie^/t^ái the, £fW®i the application are cogent and satisfactoi%v th^t^^^ira are highly probable if not certain, that th|y«e rnateri^ Jfcá&he party has not been guilty of negligence, and tlmt to his knowledge since the original answer was sworn to (Smith v. Babcock, 2 Sumn. R. 583.)

2d. 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 amending the answer. The proper way for the party to avail himself of these facts, if the court were 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 Eq. PI. § 903; Milford’s PI. 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 Bedesdale, both good authority, lay down the rule as I have stated it; see also 2 Daniel’s Ch. Pr. 914, and Taylor v. Titus, 2 Ed. R. 135, where the point was expressly ruled.

Motion denied with costs.