Burch v. Burch

18 A.D.2d 964, 238 N.Y.S.2d 559, 1963 N.Y. App. Div. LEXIS 4275

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1963
• Status: Published

Opinion

Order unanimously affirmed, without costs of this appeal to either party. Memorandum: The plaintiff husband applies for a very broad examination of the defendant concerning allegations of adultery in this divorce action. We affirm the order upon the ground that the discretion of the Special Term Justice was well exercised in denying -the plaintiff’s motion for the examination. In seeking the examination the plaintiff relied on Szymanski v. Szymanski (16 Misc 2d 398) and Pizzo v. Pizzo (33 Misc 2d 1022). Both of these eases were matrimonial actions and the examinations were permitted upon “ all of the relevant and material allegations of fact put in issue by the pleadings in this action.” In a matrimonial action ¡an examination of this scope should be granted only under very special circumstances and not casually or routinely. Although we do not feel that it is necessary for this Department to adopt a rule in this matter, this memorandum will serve as notice of our attitude in respect to such examinations. This does not apply to examinations into the financial condition and status of the parties. (Appeal from order of Monroe Special Term directing service of a; bill of particulars and denying a motion for an examination before trial of defendant.) Present — Williams, P. J., Bastow, Goldman, Halpem and MeClusky, JJ.