Beach v. Beach

11 Paige Ch. 161, 1844 N.Y. LEXIS 201

• Court: New York Court of Chancery
• Decided: August 6, 1844
• Status: Published

Opinion

The Chancellor.

The counsel for the appellant is under a mistake in supposing that upon this bill the complainant would be entitled to a decree of separation from bed and board, in case she should fail to establish any of the acts of adultery charged against the defendant. Upon a bill properly framed, the acts of cruel treatment, stated by the complainant, would, perhaps, be sufficient to warrant a decree of separation. But it is evident from this bill that there was no intention, on the part of the complainant, to make these charges of unkind treatment and cruel usage on the part of her husband a distinct ground for relief, independent of the charges of adultery. On the contrary, they appear to have been inserted merely as evidences of his infidelity to the marriage bed; the necessary result of which infidelity would be a loss of conjugal affection for the complainant. The insertion of these charges in the bill was probably unnecessary, and perhaps entirely useless. For at most, they could only be received as corroborative evidence of the charge of adultery. And as the statute allows the defendant to put in his answer to the charge of adultery without oath, he cannot be compelled to make a discovery, upon oath, of any fact which might tend to prove the principal charges in the complainant’s bill. In the case of Smith v. Smith, (4 Paige's Rep. 92,) the cruel treatment was made a distinct subject of complaint; and a decree of separation was expressly prayed for, if the complainant did not succeed in obtaining an absolute divorce on the ground of adultery. Here, however, the only specific prayer of relief is founded upon the alleged adultery, and the general prayer is not. in the disjunctive, but for such other and further relief as may be proper and consistent with the specific prayer for a dissolution of the marriage contract. Under this prayer, if the complainant fails in obtaining a decree for an absolute divorce, for the adultery of the husband, her bill must of course be dismissed. For no relief whatever can be given to her under any other part of the specific or general prayer for relief, if the charges of adultery, upon which the whole prayer is based, are not sustained. (Colton v. Ross, 2 Paige's Rep. 396.)

The demurrer is based upon the supposition that this is a bill for separation from bed and board, on account of cruel usage, as well as for a divorce for adultery; and that the bill ‘ is therefore multifarious. But as that objection fails, the defendant cannot, upon a demurrer to the whole bill, insist that some of the allegations of the complainant are unnecessary or impertinent. The decision of the vice chancellor was therefore correct. And the decretal order overruling the demurrer must be affirmed with costs.

(a)

See Rose v. Rose, (post, 166.)