39 Misc. 2d 552 | N.Y. Sup. Ct. | 1963
In this action for divorce, plaintiff moves for an order striking out defendant’s answer upon the ground that same is sham and frivolous, and punishing defendant for contempt for failure to answer questions propounded to her in her examination before trial.
In her answer defendant set up an affirmative defense that she had obtained a decree of divorce in Florida in 1956. On November 27,1962, this court entered an order directing defendant to appear for examination as to the aforesaid affirmative defense. When the examination was held on December 6, 1962, defendant only testified as to her name and address and pleaded the Fifth Amendment to all other questions relating to her affirmative defense. Apart from the fact that the motion is untimely made under rule 105 of the Rules of Civil Practice, there is no merit to plaintiff’s contention.
In a much stronger situation than the case at bar, the Appellate Division, Second Department, reversed an order of this
Accordingly, plaintiff’s motion is denied in its entirety.