Majority
p. 160Nettie Neiberg, Pl’ff, v. Louis Neiberg, Def’t. (New York Superior Court, Special Term, Filed April, 1894.)
Headnote
Pleadings—Complaint—Supplemental—Divorce. ,Leave to serve in an action for absolute divorce, a supplemental complaint, alleging additional acts of r.dultery by the defendant since the commencement of the action, will not be granted.
Motion for leave to serve a supplemental complaint.
C. I Schampain, for motion; N. S. Ljevy, opposed.
The action is brought for an absolute divorce on the ground of adultery. Issue has been joined, and the case noticed for trial by both parties. The plaintiff now moves for leave, under § 544 of the Code, to serve a supplemental complaint setting forth acts of adultery on the part of the defendant committed subsequent to the commencement of the action and the joining of issue therein. It is the established doctrine of this court, which has been followed by the court of common pleas, that a supplemental complaint, alleging additional acts of adultery by defendant since the commencement of the action, cannot be filed,
p. 161
see Day v. Day, N. Y. Law Jour., Sept. 7, 1893, McAdam, J.; Halsted v. Halsted, 7 Misc., Rep. 23 ; 57 St. Rep. 79 . 26 N. Y. Supp. 758 , Giegerich, J.; and I cannot find that the court of appeals has disapproved of that doctrine. This doctrine is not inconsistent with that laid down by the supreme court in Blanc v. Blanc, 67 Hun, 384 ; 51 St. Rep. 822 , where it was held that a defendant, sued for a divorce, may, by supplemental' answer, plead, by way of counterclaim, acts of adultery committed by the plaintiff after the suit has been brought, and may have affirmative relief therefor; because, as Judge MoAdam points out in his opinion in Day v. Day, N. Y. Law Jour., Sep. 7, 1893, a plaintiff may discontinue and sue over again, while a defendant •cannot.
This motion for leave to serve a supplemental complaint must ■be denied, but without costs.
Motion denied, without costs.