Hall v. Hall

135 N.Y.S. 741 | N.Y. App. Div. | 1912

Miller, J.:

This is an action for an absolute divorce. The defense demurred to for insufficiency is the pendency of another action between the same parties for separation on the ground of abandonment and non-support. It is not even alleged that the action for separation was pending when this action was brought. But even if it were, it would not constitute a bar. The two actions are brought on different grounds for different relief. Even a judgment in the separation action would not bar an action for absolute divorce. The learned justice at Special Term denied the motion on the authority of Conrad v. Conrad (124 App. Div. 780), in which it was held that it was not proper to unite in the same complaint a cause of action for absolute divorce and. one for separation on the ground of abandonment, a proposition entirely different from the one involved on this motion.

The order should be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs.