26 N.Y.S. 758 | New York Court of Common Pleas | 1893
The plaintiff applies for leave to serve a supplemental complaint charging the defendant with the commission
In Day v. Day, superior court of New York city, McAdam, J., filed the following memorandum of decision, September 7, 1893: “The action is for divorce on the ground of adultery, and application is now made, under section 544 of the Code, for leave to serve a supplemental complaint charging adulteries with one Warner since the commencement of the action. As there can be but one divorce, and the new matter is consistent with and in aid of that relief, the English practice of allowing adulteries committed subsequent to suit brought to be alleged in a supplemental bill with the like force as if alleged in the original (see cases cited in Blanc v. Blanc, 67 Hun, at page 387, 22 N. Y. Supp. 264) would be followed, but for the decisions in Milner v. Milner, 2 Edw. Ch. 114, and Morange v. Morange, 2 N. Y. Law Bul. 30, establishing a different rule of practice in this state. The case of Blanc v. Blanc, 67 Hun, 384, 22 N. Y. Supp. 264, holds that a defendant sued for divorce may, by supplemental answer, plead, by way of counterclaim, acts of adultery committed by the plaintiff after suit brought, and have affirmative relief therefor. There is a distinction, perhaps, between that case and this, i. e. a plaintiff may discontinue, and Sue over again, while a defendant cannot. The proofs furnished as to the new matter sought to be pleaded make out a case wherein the defendant was found in flagrante delicto with Warner, and a discontinuance may be required to make thit admissible at the trial. Under the decisions cited the present application must be denied, but without costs.”