54 A.D. 408 | N.Y. App. Div. | 1900
Lead Opinion
The first action is brought to recover a judgment of divorce (absolute) upon the ground of adultery. The averments of the complaint in that action charge the defendant with the commission of such offense with one Kaufman, and contains no charge of infidelity with any other person. The defendant’s answer denied thé allegations of adultery, and for an affirmative cause of action sets up cruel
It appears that at or about "the time when the husband commenced his action he was possessed of information tending to establish adulterous intercourse upon the part of defendant with one Wilczek, but he did not attempt to incorporate this charge in his complaint or in his reply, and, with full knowledge, chose to ' rely upon the charge which he had selected and averred in his pleadings. Issue having been joined by these pleadings the issues of adultery were settled and tried before a jury, the other issues involved being retained for trial at Special Term. The jury after a trial rendered a verdict in favor of the defendant upon the issue of adultery, and thereafter the case was moved for trial and disposition of the remaining issues at Special Term; and it was not till this time, over a year after the action was commenced, and after the plaintiff had full information respecting the improper conduct with Wilczek,-that he made the motion to amend his reply by incorporating, therein the claimed offense with Wilczek. .
It is clear, therefore, that the plaintiff was guilty of laches in making his motion, and this is aggravated by the fact that, during the whole period^ he was possessed of information which he might have procured to be incorporated in his-complaint and in his reply. He must, therefore, he treated as having elected to stand, upon the issues which, with full knowledge, he made and deliberately accepted, and his motion to amend for this reason was properly denied.
The pleadings in the second action, brought by the wife, are precisely like the counterclaim and reply in the first action, and this action was brought close upon the heels of the first action. The same reasons avail-to defeat the motion to amend the- answer in his action as to amend the- reply in the first action. " ■
The motion for the issuance of a'commission to take the testimony of witnesses in Philadelphia as to defendant’s misconduct with Wilczek is not, however, necessarily dependent upon -the denial of
We conclude, therefore, that the denial of the motions to amend, in each case, should be affirmed, with ten dollars costs and disbursements, and the order denying the motion to issue a commission should be reversed and the motion granted, without costs to either party.
Van Brunt, P. J., Rumsey and McLaughlin, JJ., concurred.
Concurrence Opinion
I concur. I think that the evidence sought to be taken under this commission was competent upon the question as to the custody of the children of the marriage. The respondent claims that the custody of the children should be awarded to her, and in
In the first and second above-entitled actions, orders affirmed^ with ten dollars costs and disbursements.
In the third and fourth above-entitled actions, order reversed and motion granted, without costs.