13 A.D.2d 954 | N.Y. App. Div. | 1961
Order, entered on April 11, 1961, denying plaintiff’s motion to dismiss a counterclaim pursuant to rule 280 of the Rules of Civil Practice, unanimously reversed, on the law, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs, with leave to defendant to serve an amended pleading which shall conform to the requirements of rule 280 within 20 days after service upon him of a copy of the order entered herein, with notice of entry. Under rule 280 a cause of action for separation must specify particularly the nature and circumstances of the alleged misconduct “and set forth the time and place of each act complained of with reasonable certainty”. The counterclaim herein does not meet the requirements of rule 280 either as to the specificity of the nature of the alleged misconduct nor as to the time and place of each of the acts complained of (Harmen v. Harmen, 12 A D 2d 784; Harten v. Harten, 259 App. Div. 519; Seligmann v. Seligmann, 255 App. Div. 277). Amplification by a bill of particulars, as suggested by Special Term, is not the appropriate remedy, for such procedure would tend to nullify the mandate of rule 280 that the pleading specify the particulars. Concur — Breitel, J. P., Valente, Stevens, Steuer and Bastow, JJ.
