Newell v. Newell — 57 N.Y.S. 403

Majority

p. 403

(27 Misc. Rep. 117.)

NEWELL v. NEWELL.

(Supreme Court, Special Term, New York County.

March, 1899.)

Headnote

1. Pleading—Supplemental Answer—Affidavit of Merit.

A motion for leave to serve a supplemental answer will he denied, whepe the proposed answer has not been presented to the court nor served with the motion papers, and the papers on which the motion is based fail to show the service and filing of the affidavit of merits required by rule 23 of the general rules of practice.

"2. Alimony—Modification of Order.

An application for. a modification" of" an order directing the payment of alimony pendente lite may be referred to the justice who signed it.

p. 404

Action for divorce by Isabelle Newell against Edward J. Newell. Defendant moves for leave to serve a supplemental answer, and applies for a modification of an order directing the payment of alimony pendente lite. Motion denied, and application referred to the justice who signed it.

Frederick B. House, for the motion.

David K. Case, opposed.

Although the notice of motion asks for “leave to serve a supplemental answer,” yet such proposed pleading has neither been presented to the court, nor served with the motion papers, and therefore the application must be denied. Stern v. Knapp, 8 Civ. Proc. R. 54; Noxon v. Glen, 2 N. Y. St. Rep. 662 . Moreover, the papers upon which such motion is based are defective, because they fail to show, in conformity with the requirements of rule 23 of the general rules of practice, the service and filing of an affidavit of merits. The motion for leave to serve a supplemental answer is therefore denied, with $10 costs, but with leave to renew upon additional papers. The application for a modification of the order directing the payment of alimony to the plaintiff during the pendency of the action is referred to the justice who signed the same. The motion to punish the defendant for contempt for failure to comply with the terms of such order may be renewed, upon proper notice, after the determination of such application. Order to be settled on notice.