Simmons v. Simmons
New York Supreme Court
At chambers. On motion to make answer more definite and certain. Action by Phoebe B. Simmons against Nellie F. Simmons, for the alienation of the affections of plaintiff’s husband, Abram G. Simmons. The complaint alleged the marriage; improper conduct of her husband and the deféndant; plaintiff’s frequent condonation of her husband’s misconduct; and his ultimate desertion of her for defendant; and his marriage with the latter after obtaining a pretended divorce.
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At chambers. On motion to make answer more definite and certain. Action by Phoebe B. Simmons against Nellie F. Simmons, for the alienation of the affections of plaintiff’s husband, Abram G. Simmons. The complaint alleged the marriage; improper conduct of her husband and the deféndant; plaintiff’s frequent condonation of her husband’s misconduct; and his ultimate desertion of her for defendant; and his marriage with the latter after obtaining a pretended divorce. The answer, among other things, averred, in paragraphs 3 and 4, respectively, that plaintiff and her husband were divorced in…
1Opinion of the CourtAndrews, J.
It is entirely clear that neither paragraph 3 nor paragraph 4 of the answer, as pleaded, sets up a complete defense to the cause of action contained in the complaint. Section 508 of the Code authorizes a partial defense to be pleaded, but provides that “it must be expressly stated to be a partial defense, ” and, if either or each paragraph was intended as a partial defense, the pleader has not complied with the provisions of said section. If it was intended in said paragraphs to plead facts which would go in mitigation of damages, it should have been so stated. Under these circumstance, I…
2Cited by3 opinions
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