Van Benthuysen v. Van Benthuysen
New York Supreme Court
On demurrer to a counter-claim. Action by Anna Van Benthuysen against John Van Benthuysen fora limited divorce on the ground of cruel and inhuman treatment. Defendant answered, setting up plaintiff’s adultery as a counter-claim, and demanded an affirmative judgment of divorce thereon. There was a demurrer to such counter-claim. Code Civil Proc.
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On demurrer to a counter-claim. Action by Anna Van Benthuysen against John Van Benthuysen fora limited divorce on the ground of cruel and inhuman treatment. Defendant answered, setting up plaintiff’s adultery as a counter-claim, and demanded an affirmative judgment of divorce thereon. There was a demurrer to such counter-claim. Code Civil Proc. N. Y. § 1770, as amended by Laws 1881, c. 703, provides that a cause of action against the plaintiff and in favor of the defendant, arising under either of the articles enumerating the grounds of divorce, may be interposed in connection with a denial…
1Opinion of the CourtMayham, J.
This action is for a limited divorce on the ground of cruel and inhuman treatment. The defendant, in his third defense, alleges the *239adultery of the plaintiff. This is set up as a defense, and also as a counterclaim, and upon it the defendant asks the usual judgment in actions for an absolute divorce for adultery. To this counter-claim the plaintiff interposes a demurrer, and assigns as cause: First, that it is not a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action; second, that it…
2Cases cited2 opinions
- M'Intosh v. M'IntoshNew York Supreme Court · 1856
- Terhune v. TerhuneNew York Court of Common Pleas · 1870
3Cited by1 opinion
- Mason v. MasonNew York Supreme Court · 1905