Tavarozzi v. Tavarozzi

Plaintiff defaulted at the trial, and her counsel stated in open court that she had directed him to abandon the action. Defendant thereupon gave proof of his counterclaim. On investigation I think that a counter-claim for annulment may not be interposed in an action for a separation. See Civil Practice Act, § 1168; Code Civ. Pro. § 1770; Murphy v. Murphy, 194 App. Div. 395; Ostro v. Ostro, 169 id. 790, 791. In an ordinary civil action where a defective pleading has been interposed but objection thereto has not been taken, it will be deemed to have been waived. But the situation here is…