Burgess v. Burgess — 52 N.Y. Super. Ct. 545

Majority

p. 545

BURGESS, Respondent, v. BURGESS, Appellant.

Headnote

Divorce—provisions of General Rule 74 as to examination of plaintiff concerning matters therein set forth.

Before Sedgwick, Oh. J., and Freedman, J.'

Decided December 7, 1885.

Appeal from judgment of divorce.

The conditions on which the defendant was permitted, by an order of the special term to serve an amended answer, were not complied with, and thereafter the-defendant stipulated to proceed to trial under the original pleadings. The trial took place before a referee who, on consent of the parties to a reference, had been appointed by the court to hear and determine the issues. In fact,, the answer of the defendant did not create an issue, because it expressly admitted each and every allegation of the verified complaint, inclusive of the charges of several acts of adultery, and did not set up an affirmative defense. The testimony adduced before the referee by the plaintiff, which the defendant failed to controvert, fully established that in the months of August and October, 1884, the defendant had been guilty of adultery, and the circumstances under which the several acts of adultery had been committed, in themselves showed that said acts were committed without the knowledge, consent, connivance, privity or procurement of the plaintiff.

p. 546

The averments of the complaint, that five years had not elapsed since the plaintiff discovered the said acts of adultery, that the plaintiff did not voluntarily cohabit with the defendant, since the discovery by her of said acts, and that she did not condone the same, were also expressly admitted by the answer, and the circmnstances of the case showed that they were true.

G. A. Burgess,- appellant in person.

J. H. McCarthy, and William King Hall, for respondent.

The Court at General Term (after stating the facts as above), said :—“ Under the exceptional circumstances of this case, it was therefore not absolutely necessary that the plaintiff should have been specifically examined by the referee as to those allegations of her complaint, the insertion of which was called for simply by the general rules of the courts. Upon the whole case, the referee was justified in making the report he did, and the court at special term was right in confirming the report, and granting the appropriate judgment thereon. The points raised by the appellant are, under all the circumstances, of a -purely technical character, and wholly without merit.” •

Opinion by Freedman, J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs.