135 Misc. 264 | N.Y. Sup. Ct. | 1929
Section 1168 of the Civil Practice Act permits the defendant in a separation action to counterclaim for divorce. (See Rolle v. Rolle, 201 App. Div. 698.) The fact that the adultery relied on did not occur until after the commencement of the action should not alter the situation and make it necessary for the defendant to commence a separate action. In Otto v. Otto (220 App. Div. 130) a plaintiff was permitted to ■ serve a
In Blanc v. Blanc (67 Hun, 384) it was held that a defendant in a divorce action could properly be permitted to serve a supplemental answer setting up as a defense and as a counterclaim adulteries alleged to have been committed by the plaintiff after the beginning of the action.
In Ames v. Ames (109 Misc. 161) similar relief was granted to the defendant in a separation action. It follows that the defendant here should be permitted to serve a supplemental answer setting up a counterclaim for adultery. Defendant seeks also to vacate an order heretofore made awarding to the plaintiff temporary alimony and a counsel fee. The plaintiff makes no attempt to deny the charge that she committed adultery and she offers no competent evidence in support of her claim that the defendant was also guilty of adultery. It would seem, therefore, that no probability of success on the part of the plaintiff has been established. The probabilities are exactly the reverse. In the circumstances the order granting temporary alimony and a counsel fee will be vacated and the custody of the child awarded to. the defendant. The undertaking filed on the appeal from the order granting alimony will be canceled. Settle order.