McCrea v. McCrea

58 How. Pr. 220

• Court: New York Supreme Court
• Decided: October 15, 1879
• Status: Published

Opinion

Barker, J.

The motion is denied, without costs. It is held that the only power possessed by the court to strike out a pleading, or to change and alter the same in any particular, on a motion like this, is contained in sections 538, 545 and 546 of the Code. It is not pretended hy the counsel for the plaintiff that he has made a case within either section.

In a proceeding to adjudge the defendant guilty of a contempt, it may he the court can, as a means of punishment, strike out his answer. On that point, I do «not now express my opinion.

So long as there is an issue framed hy the pleadings, in an action for divorce, there can be no reference (2 R. S., p. 145, sec. 40, marginal; Code, 968; Batzel agt. Batzel, 54 How. Pr., 139).