Carpenter v. Carpenter — 42 N.Y. St. Rep. 577

Majority

p. 577

Anna S. Carpenter, App’lt, v. Hiland Carpenter, Resp’t.

(Supreme Court, General Term, Third Department,

Filed December 28, 1891.)

Headnote

Divorce—Adultery—Bill op particulars.

A plaintiff should not he required to furnish a bill of particulars relative to an allegation in a complaint that the defendant was living in adulterous intercourse.

Appeal by the plaintiff from an order granted at special term by Mr. Justice Mayham, September 30,1891, directing the plaintiff to furnish the defendant with a bill of particulars or statement in writing of the particular time or times and place or places at which the plaintiff expects or intends to prove any act or acts of adultery or criminal intercourse that took place between the defendant and Grussie McGreeehie, mentioned in her amended complaint, other than those particularly specified in said complaint, and particularly the acts of adultery alleged under the 13th, 14th and 15th general paragraphs or divisions of said amended complaint.

By the amended complaint nine specific acts of adultery are charged against the defendant, being alleged in the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th and 12th general divisions of such amended complaint; and three general allegations of adultery committed by defendant with the same. person on divers other times: (1) between the 1st day of December, 1888, and the 20th day of May, 1891; (2) on divers other times between the 1st day of December, 1888, and the 20th day of May, 1891; and (3) from about the 6th day of August, 1890, until about the 20th day of May, 1891, at the town of Hoosick, the defendant had been living in adulterous intercourse with said woman, Grussie McGreeehie, at her said residence or lodging, as plaintiff is informed and believes, which are stated in the 13th, 14th and 15th general divisions of said amended complaint.

After such amended complaint had been so served, the defendant, on the 17th September, 1891, made his affidavit, in which he denied each and every allegation of adultery charged against him in the said amended complaint, and his inability to meet those general allegations of adultery without a bill of particulars. Thereupon the notice of motion for a bill of particulars was given and served.

G. D. Kingsley (Henry A. King, of counsel), for app’lt; Smith & Parmenter (B. A.Parmenter, of counsel), for resp’t.

We are of opinion that the order of the special term appealed from directing a bill of particulars be furnished by plaintiff should be modified by striking out that requirement as-to the fifteenth general paragraph of the complaint.

The allegation in the fifteenth paragraph is the “living in adulterous intercourse.” Under this allegation it would be mani

p. 578

■festly improper to exclude proof of a nature which, though circumstantial, might point to such living in adulterous intercourse, but be wholly unsatisfactory as proof of a particular act of adultery at a particular date or place.

It is therefore ordered, that the order of the special term be modified by striking out the words “ and fifteenth ” and by the insertion of the word “and” between the words “ thirteenth ” and “fourteenth” and so modified the order be affirmed. The defendant to serve a copy of the modified order and the plaintiff to have ten days thereafter to comply therewith.

The appellant to have ten dollars costs of this appeal and printing disbursements.

Learned, P. J., concurs.