Hyperlawhypertext legal database Henry v. Henry 26 N.Y. Super. Ct. 614

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Henry v. Henry

26 N.Y. Super. Ct. 614 3 Rob. 614 Court N.Y. Super. Ct. English

Delivered by Robertson, Ch. J.

Contents

Majority

p. 614
Jane Henry, plaintiff vs. James Henry, defendant.

Headnote

In an action for a limited, divorce on the ground of cruelty, the defendant cannot set up as a defense, or counter-claim, the adultery of the plaintiff1.
(Before Robertson, Ch. J. at special term,
April, 1854.)
This is an action for limited divorce on the ground of cruelty. The defendant, after having answered, alleging the like conduct on the part of the plaintiff, moved for leave to file a supplemental answer, setting up adultery on the part of the plaintiff, and asking for an absolute divorce, by way of counterclaim.
J. N. Lewis, for the plaintiff.
C. S. Spencer, for the defendant.

The charge of adultery, sought to be set up in the answer, may be a good subject for a separate action. It is not a counter-claim, because it does not arise out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, nor is- it connected with the subject of the action. (Code, § 150. Diddell v. Diddell, 3 Abb. 167 .) Nor is it a defense, because not connected with the acts of cruelty charged in the complaint. The kinds of relief asked for, are entirely different, so that they cannot be joined in one action, (Johnson v. Johnson, & John. Ch. 163; McIntosh v. McIntosh, 12 How. Pr. 289 ,) and the entire incongruity of the causes of action would prevent their being tried in one action. (McNamara v. McNamara, 9 Abb. 18 .) And it has been so held, in one case. (Burdell v. Burdell, 2 Barb. 473 . S. C. 3 How. Pr. 216 .)

It is not necessary to notice other objections.

Motion denied, with $7 costs.

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