Ziegler v. Ziegler

191 Misc. 413, 77 N.Y.S.2d 592, 1948 N.Y. Misc. LEXIS 2168

Opinion

Hofstadter, J.

The amended complaint adds three causes of action for separation to the single cause of action for divorce stated in the original complaint, served with the summons indorsed ‘ ‘ Action for Absolute Divorce. ’ ’ The defendant moves before answer to sever the three new causes of action as inconsistent with the original cause of action. Joinder of a cause of action to set aside a separation agreement with one for a divorce has been permitted (de Oteris v. Mario, 185 Misc. 1029), as has the joinder of a cause of action for annulment with one for a separation (Prosswimmer v. Prosswimmer, 182 Misc. 807). It cannot be said that the joinder is improper, bearing in mind the recent amendment to section 1161 of the Civil Practice Act, making adultery a ground for separation. In any case, the motion to sever for inconsistency before answer is premature (Ikle v. Ikle, 257 App. Div. 635, 637). Since the original complaint was served with the summons and the action is being contested, the right to amend the complaint, as of course, is not curtailed by the indorsement on the summons. Motion denied. The defendant’s time to answer the complaint is extended ten days after the service on his attorney of a copy of this order, with notice of entry.