Mordkowitz v. Mordkowitz

This is an action for divorce. Defendant has interposed an answer containing, in addition to certain denials, two counterclaims. Plaintiff has served a reply to these counterclaims. By this motion, which invokes rules 90, 102, 103, subdivision 4 of 106 (I assume the movant intended rule 109, subd. 5) and 280 of the Rules of Civil Practice, plaintiff seeks to correct or dismiss the counterclaims as pleaded.

Defendant urges that the service of the reply to the counterclaims vitiates the motion. There is, however, no statement on record or proof as to when the reply was served. Under rule 90,…