Strong v. Strong

3 Rob. 719

Opinion

Robertson, Ch. J.

The appeal in this case presents the question whether the learned justice who settled the issues was warranted in refusing to permit an issue whether the plaintiff was guilty of adultery, at any time before the commencement of this action, with the person mentioned in the defendant’s supplemental answer, to be tried at the same time with the others. It is very evident that the jurors who are to try such issue might answer that question in the. affirmative, without at all agreeing as to the occasion of the offense. No issues ought properly to be tried except what will affect the decision; and both parties are bound to point out, with reasonable pre- . cisión, the particular circumstances intended to be established, by time and place as well as person. The statute, as well as the authorities, require this. (Codd v. Codd, 2 John. Ch. 224. Wood v. Wood, 2 Paige, 109. Bokel v. Bokel, 3 Edw. 376. 2 Barb. Ch. 256.) The other issues in the case are fully as wide as the defendant was entitled to. The 12th' and 13th of such issues cover all the time between the first of September, -1861, and the first of May, 1864, and every where in the city of New York; the 14th covers all the time from the first of May, 1864, to the 16th of January last, and the same area of locality. Such issues correspond with the allegations in such answer. There is no allegation in such answer, of a commission of the offense named in such rejected issue, with the party, therein named, except generally, without reference to time or locality. It consequently is not one of “ the facts contested by the pleadings ” in this action, which the statute authorizes to be tried as an issue. (2 B. 8. § 145.)

The order appealed from should be affirmed, with costs.