Legal Opinion

Henry v. Henry

The Superior Court of New York City

Decided April 15, 1864PublishedCited by 3 opinions

' Motion for leave to serve supplemental answer. This was an action by Jane Henry against James Henry for a limited divorce, on the ground of cruelty. The defendant, after having answered, alleging the like conduct on the part of the plaintiff, now moved for leave to serve a supplemental answer, setting up adultery on her part, and asking an absolute divorce by way of counter-claim.

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' Motion for leave to serve supplemental answer. This was an action by Jane Henry against James Henry for a limited divorce, on the ground of cruelty. The defendant, after having answered, alleging the like conduct on the part of the plaintiff, now moved for leave to serve a supplemental answer, setting up adultery on her part, and asking an absolute divorce by way of counter-claim. In this action, a plea of adultery, after the acts of cruelty complained of, is not admissible either as a defence or counter-claim. 1. It cannot be a counter-claim, because it is not part of the transaction…

1Opinion of the Court

Robertson", C. J.

—The charge of adultery, sought to be set up in the answer, may be a good subject for a separate action. It is not a counter-claim, because it does not arise 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. (Code, § 150; Diddell a. Diddell, 3 Abbotts’ Pr., 167.) Nor is it a defence, because not connected with the acts of cruelty charged in the complaint. The kinds of relief asked for are entirely different, so that they cannot be joined in one action. (Johnson a. Johnson, 6 Johns. Ch.,…

2Cases cited3 opinions

  1. Johnson v. JohnsonNew York Court of Chancery · 1822
  2. M'Intosh v. M'IntoshNew York Supreme Court · 1856
  3. Burdell v. BurdellNew York Supreme Court · 1848

3Cited by3 opinions

  1. Merritt v. GouleyNew York Supreme Court · 1890
  2. Conrad v. ConradAppellate Division of the Supreme Court of the State of New York · 1908
  3. Doe v. RoeNew York Supreme Court · 1880

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