8 A.D.2d 713 | N.Y. App. Div. | 1959
Order unanimously reversed on the law and in the exercise of discretion, without costs. Defendant’s cross motion for leave to file an amended and supplemental answer and counterclaim is granted, and since plaintiff’s motion to preclude thereby becomes moot, said motion is denied. In this action for divorce the answer and counterclaim of defendant husband contained charges of adultery committed by plaintiff wife. Defendant appeals from an order precluding him from offering proof of the alleged adulteries because, although he named corespondents in his bill of particulars, he failed to supply the dates and times of day when each act of adultery was alleged to have occurred. Defendant states that he has no knowledge of specific times or places but expects to prove a course of adulterous conduct from the facts and circumstances. He has also cross-moved for leave to serve an amended and supplemental answer and counterclaim naming the corespondents but alleging lack of knowledge of the particular times and places of any acts of adultery. In defendant’s affidavit in support of his cross motion, he states unequivocally that he intends to rely “upon a continued and protracted course of conduct” on the part of plaintiff. His cross motion has been denied. No particulars as to the time and place of specific acts of adultery need be stated, where it is alleged in the pleadings that the details as to time and place are unknown, and the pleader has limited himself to establishing adultery solely by proof of course of conduct and admissions (Mitchell v. Mitchell, 61 N. Y. 398; Ketcham v. Ketcham, 32 App. Div. 26; Krauss v. Krauss, 73 App. Div. 509). Concur — Botein, P. J., Rabin, Valente, McNally and Stevens, JJ.