Rosenstiel v. Rosenstiel

17 A.D.2d 728, 232 N.Y.S.2d 223, 1962 N.Y. App. Div. LEXIS 8067

Opinion

— Order entered July 2, 1962 denying plaintiff’s motion to strike certain counterclaims or, alternatively, to direct a severance of such counterclaims, and to provide a priority of trials among all the claims made unanimously modified, on the law, the facts, and in the exercise of discretion, with $20 costs and disbursements to plaintiff-appellant, to the extent of granting a severance of the counterclaims with a direction that the annulment' action should be tried first, and the order is otherwise affirmed. The annulment cause of action is separate and distinet from the issues on the counterclaims, which depend upon a subsisting marital status. Consequently, the counterclaims would encumber unjustifiably the proceedings in the annulment action. It was conceded on argument that no prejudice would result to defendant wife if there were a severance, so long as trial in the annulment ease was not directed precipitately, certainly not before pretrial proceedings were concluded. The pretrial proceedings in the annulment ease should he initiated and concluded promptly by defendant wife, and plaintiff husband is also obliged to advance the annulment case with expedition. Settle order on notice. Concur — Breitel, J. P., Rabin, Valente, Eager and Steuer, JJ.