Heyde v. Heyde — 6 N.Y. Super. Ct. 692

Majority

p. 692

Caroline Heyde v. Charles L. Heyde.

Headnote

In an action for a divorce on the ground of adultery, an order of reference on the default of the defendant to answer will not he made, where the complaint contains no specification of the person with whom, or the place where, the offence was committed.

An allegation that the defendant, in November, 1851, committed the offence in the city of New York, with a female whose name is unknown to the plaintiff, and the particular circumstances of which are unknown to the plaintiff, will not suffice. ■

If the person be unknown, the complaint should state particularly the place where the offence occurred, as at a house specified, or the like.

January 17, 1852.

The above points were held by

at special term, wjth the concurrence of Duer, Campbell, and Bosworth, J.

p. 693

was made by the plaintiff for a reference to take proof of the adultery charged in the complaint. The charge in the complaint was, that “ the defendant, since the marriage, viz., in the month of November, 1851, committed adultery with a female in the city of New York, whose name is unknown to the plaintiff, and the particular circumstances whereof are unknown to the plaintiff, but which she expects to be able to prove at the trial of this cause.”

The judge said it would be dangerous to proceed on such an indefinite allegation. ^ If the party have information sufficient to warrant the belief that the offence has been committed, or the expectation that it can be proved on the trial, that information must extend, at least to the particular place or locality where it occurred, though the name of the person with whom may be unknown. He referred to Wood v. Wood, 2 Paige, 113; Codd v. Codd, 2 J. C. R. 224; and 2 Barb. Ch. Pr. 256.