28 How. Pr. 432 | The Superior Court of New York City | 1865
Under section 113 of the Code, the court has full discretion on the subject where it is in furtherance of -justice, and where such amendments are clearly made in good faith. (Cartledge agt. Cartledge, 8 Jur. N. S. 493; Smith agt. Smith, 4 Paige’s Rep. 435.) Although amendments owing to laches may be refused in other cases, yet in actions for divorce the privilege of amending so as to set up a valid defence, is not only allowable at any time before trial, but the court should of its own motion, require any valid defence to be interposed of which it had any knowledge (Smith agt. Smith, 4 Paige, 425).
The contract of marriage differs from all other contracts; its continuance does not depend on the will or consent of the parties. Public policy forbids that it should be judicially dissolved, unless there be in fact an adequate cause for its dissolution; the courts will not permit a marriage tofbe dissolved in consequence of the negligence or collusion of the parties. The statutes declare (3 R. S. 5th ed. p. 236, § 55) that although the offqnce charged be established, yet if condonation or adultery by plaintiff appear, the plaintiff shall not obtain a divorce, and for the purpose of enforcing this policy, the courts have invariably
Chancellor Walworth, in the case of Smith agt. Smith, in laying down a similar doctrine, held that the court will of its own motion act in such cases, and see that all valid reasons for not granting a divorce be fairly brought before it. The reason why courts have pursued this course is, that marriage is a contract of a peculiar nature, and they
In this case opposing affidavits have been introduced to impeach the proposed amendments, and I think at this stage of the proceedings it would be improper for me to pass upon the question of the veracity of the witnesses, especially in a case of this nature. Witnesses on both sides in this class of cases are generally persons of tarnished reputation, for other witnesses can very rarely be obtained, and it is undoubtedly the province of the jury to pass upon the truth or falsity of their testimony. My duty on this motion is simply to ascertain whether the defendant has a reasonable prospect of establishing one of her recriminating charges ; if I think she has, this alone will give her the right to amend. In the early part of the proceedings the defendant had a perfect right to interpose this defence, if she had known the facts alleged. The plaintiff is not therefore prejudiced, and her non-compliance with the rules of order in matter of practice, I am satisfied, did not arise from any disrespect to the court or from any contempt of the law.
The amendment should be allowed.