Dolan v. Dolan

259 A.D. 1115, 21 N.Y.S.2d 230, 1940 N.Y. App. Div. LEXIS 8172

Opinion

Appeal from that part of an order of the Supreme Court at Special Term, Broome county, which denied defendant’s motion to dismiss the second cause of action alleged in the complaint. This cause of action is for a judicial separation. The first cause of action is to set aside a separation agreement. Defendant’s position is that a separation action cannot be maintained while there is a valid separation agreement in existence. There is authority, however, which sanctions the joinder of two such causes of action. (Landes v. Landes, 172 App. Div. 758; Zysman v. Zysman, 140 Misc. 617.) The modern trend of practice favors the joinder of actions wherever possible. The authorities cited by defendant deal with substantive questions and not with an issue of practice. Order appealed from unanimously affirmed, with costs. Present — Hill, P. J., Crapser, Bliss, Heffeman and Poster, JJ.