Stoddard v. Stoddard

187 A.D. 279, 175 N.Y.S. 650, 1919 N.Y. App. Div. LEXIS 6492

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1919
• Status: Published

Opinion

Shearn, J.:

The order appealed from granted plaintiff’s motion to amend the complaint by inserting a prayer for an injunction and, on the complaint as amended and the demurrer thereto, enjoined the defendant, pendente lite, from prosecuting an action and from bringing further actions in the Municipal Court to recover monthly installments under a separation agreement. The nature of the action and the sufficiency of the complaint are considered in a decision handed down herewith. (187 App. Div. 258.)

Irrespective of the decision of the court in the companion case, we are of the opinion that, assuming that the complaint states a cause of action, the defendant should not be stayed from prosecuting actions on the separation agreement until the plaintiff has actually established a right to relief in that action upon the trial thereof. The amendment was, therefore, unnecessary.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Clarke, P. J., Latjghlin, Page and Merrell, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.