Spahn v. Spahn
New York Supreme Court
Motion to compel defendant to elect between two counter-claims set up in her answer. The action was brought by the plaintiff for an absolute divorce from the defendant. The answer denied the adultery charged in the complaint, and set up two counter-claims, one alleging cruel and inhuman treatment, and the other alleging the adultery of the plaintiff. Affirmative judgment upon these counter-claims for a separation, or for an absolute-divorce, was demanded by the defendant.
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Motion to compel defendant to elect between two counter-claims set up in her answer. The action was brought by the plaintiff for an absolute divorce from the defendant. The answer denied the adultery charged in the complaint, and set up two counter-claims, one alleging cruel and inhuman treatment, and the other alleging the adultery of the plaintiff. Affirmative judgment upon these counter-claims for a separation, or for an absolute-divorce, was demanded by the defendant. This is a motion to compel the "defendant to elect upon which of these two counter-claims she will rely. Section 1770 of…
1Opinion of the Court
Barrett, J. (Orally.)
There is nothing in section 1770 of the Code of Civil Procedure, to limit the defendant to a counter-claim under one of the two articles there mentioned. I think it was the intention of the Legislature to enable the parties in such cases, to settle all their controversies in one action.*
Motion denied, but, as the question is new, without costs.
The rule thus established supersedes in effect the ruling in Terhune v. Terhune, 40 How. Pr. 258, and R. F. H. v. S. H., 40 Barb. 9. The general rule in other States I understand to be that the right to counter-claim, affirmative…
2Cases cited1 opinion
- Terhune v. TerhuneNew York Court of Common Pleas · 1870
3Cited by2 opinions
- Mason v. MasonNew York Supreme Court · 1905
- Conrad v. ConradNew York Supreme Court · 1907