Henry v. Henry

17 Abb. Pr. 411

Opinion

Robertson", C. J.

—The charge of adultery, sought to be set up in the answer, may be a good subject for a separate action. It is not a counter-claim, because it does not arise out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. (Code, § 150; Diddell a. Diddell, 3 Abbotts’ Pr., 167.) Nor is it a defence, because not connected with the acts of cruelty charged in the complaint. The kinds of relief asked for are entirely different, so that they cannot be joined in one action. (Johnson a. Johnson, 6 Johns. Ch., 163; McIntosh a. McIntosh, 12 How. Pr., 289.) And the entire incongruity of the causes of action would prevent their being tried in one action. (McNamara a. McNamara, 2 Hill, 547; S. C., 9 Abbotts’ Pr., 18.) And it has been so held in one case. (Burdell a. Burdell, 2 Barb., 473; S. C., 3 How. Pr., 216.) It is not necessary to notice other objections.

Motion denied, with $7 costs.