Spahn v. Spahn

12 Abb. N. Cas. 169

Opinion

Barrett, J. (Orally.)

There is nothing in section 1770 of the Code of Civil Procedure, to limit the defendant to a counter-claim under one of the two articles there mentioned. I think it was the intention of the Legislature to enable the parties in such cases, to settle all their controversies in one action.

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Motion denied, but, as the question is new, without costs.

The rule thus established supersedes in effect the ruling in Terhune v. Terhune, 40 How. Pr. 258, and R. F. H. v. S. H., 40 Barb. 9. The general rule in other States I understand to be that the right to counter-claim, affirmative relief in matrimonial actions, is not recognized any further than it is given by express statute, and that general provisions of statute allowing a defendant to ask affirmative relief in his answer, will not be extended so as to sanction counter-claim in divorce.

The interposition of the counter-claim under the statute gives the defendant a right to resist discontinuance, and insist on trial. Campbell v. Campbell, 12 Hun, 636; and see Owen v. Owen, 54 Geo. 526; Hoff v. Hoff, Mich. Apr. 25, 1882, 12 Northw. R. 160.

As to recrimination, see section 1765, and Doe v. Doe, 23 Hun, 19.