gations of the complaint and set up as a counterclaim an abandonment on the part of the plaintiff for which a separation was asked. It was undisputed that the defendant had abandoned the plaintiff without any means of support and that the plaintiff had left the husband and refused to return to him. Held, on all the evidence, that a judgment dismissing both the complaint and the counterclaim should be reversed and a new trial granted. Finkelstein v. Finkelstein (1916), 174 App. Div. 416, 161 N. Y. Supp. 166.

"The fact that a wife is so temperamentally constituted as to be nervous and hysterical, that under stress of emotion mayhap caused by the jarring nature of her husband- she may have attempted irrational acts, are reasons rather for care and commiseration than for an abandonment. The fact that the husband has contributed toward the wife's support after he has ceased to live with her, with a fixed determination not to resume his marital life with her, is no reason for denying a separation on the ground of abandonment." Gray v. Gray (1914), 85 Misc. 584, 587, 148 N. Y. Supp. 1064.

Where a wife's control and management of the home is made unpleasant by the interference of her mother-in-law, she is justified in leaving her husband and requiring him to support her elsewhere, and his complaint in an action for separation on the ground of abandonment will be dismissed. Field v. Field (1912), 79 Misc. 557, 139 N. Y. Supp. 673.

ARTICLE XIX.

PLEADINGS AND TRIAL.

(Fiero, Spec. Act., 3rd Ed., pp. 1081-1089.)

SUBD. 1. Complaint.

la. Reply.

2. Answer.

3. Trial.

4. Evidence.

Subd. 1. Complaint.

(Fiero, Spec. Act., 3rd Ed., PP. 1082-1086.)

Complaint examined and found insufficient. Rebstock v.

stock (1913), 144 N. Y. Supp. 289.

Reb

Complaint by wife stating cause of action. Mossa v. Mossa (1908), 123 App. Div. 400, 107 N. Y. Supp. 1044.

Disputed questions of jurisdiction in actions for separation should not be determined merely upon affidavits, but should be reserved for the trial. Wade v. Wade (1916), 173 App. Div. 928, 158 N. Y. Supp. 555.

Although the acts constituting cruel and inhuman treatment must be specified in a complaint for separation, particulars will not be ordered where the defendant, in a defense to an action for divorce, has alleged acts upon which she bases her charge of cruel and inhuman treatment with reasonable certainty within the information which she possesses. Geimer v. Geimer (1916), 161 N. Y. Supp. 415.

Where a complaint in an action for separation fails to show that the court has jurisdiction by omitting to allege that the marriage was performed in this State, the court may allow the defect to be cured by amendment. Such an amendment merely corrects the defective pleading and does not bring the cause of action into being. Dulso v. Dulso (1915), 170 App. Div. 67, 156 N. Y. Supp. 90.

Where, in an action by a wife against her husband for separation on the ground of abandonment, a copy of the decision in a prior action for abandonment brought by her against her husband is annexed to and made a part of the complaint, and according to the findings in such decision the plaintiff abandoned the defendant valuntarily, without cause, and with the intention not to return, she having acquiesced in such finding, is bound thereby. Silberstein v. Silberstein (1913), 156 App. Div. 689, 141 N. Y. Supp. 376.

Where a wife brought an action for a separation on the ground of desertion alleged to have occurred at a certain time, and defendant's counterclaim that six months later plaintiff abandoned him in another State, their domicile, was denied by the reply which also pleaded as a defense thereto new matter charging defendant with adultery committed prior to the alleged desertion and that since the discovery of the adultery plaintiff had not cohabited with defendant, and he demurs to said defense, plaintiff's motion for judgment on the pleadings will be granted, though it appears that the desertion alleged in the complaint has not continued for the time required to make it a ground for a decree of separation in the State where the desertion occurred. Brownrigg v. Brown

rigg (1913), 80 Misc. 108, 140 N. Y. Supp. 778, affd., 156 App. Div. 913, 141 N. Y. Supp. 1111.

In an action for separation on the ground of cruel and inhuman treatment it may be necessary under section 1764 of the Code of Civil Procedure to plead evidentiary or redundant matter. Zimmerman v. Zimmerman (1911), 2 Bradb. 66.

Subd. 1a. Reply.

Plaintiff in an action for divorce may plead subsequent acts of adultery in a reply to defendant's counterclaim alleging adultery of the plaintiff. Freeman v. Freeman (1912), 2 Bradb. 128.

Subd. 2. Answer.

(Fiero, Spec. Act., 3rd Ed., pp. 1086-1087.)

The adultery of the wife is such misconduct as constitutes a defense in an action brought by her for separation and support, under sections 1762-1765 of the Code of Civil Procedure. The fact that the wife, in an action for divorce brought by the husband on account of such adultery, has successfully interposed the defense that the husband had been guilty of like misconduct does not change the rule. That the court refused to give the husband relief in that action is not inconsistent with his right to urge the same wrongful act as a defense in the separation action by the wife. In the separation action the right of action is based upon and limited by the statutory provision. Hawkins v. Hawkins (1908), 193 N. Y. 409.

Facts constituting a cause of action for the annulment of the marriage do not constitute a defense to an action for a separation. Ostrov. Ostro (1915), 169 App. Div. 790, 155 N. Y. Supp. 681. Where a wife brings action against her husband for separation upon the ground that it is unsafe and improper for her to cohabit with him, and after denying the charges he recriminates by alleg ing the plaintiff's adultery as a counterclaim, and the court finds both parties at fault, it is proper to dismiss the complaint. Kamman v. Kamman (1915), 167 App. Div. 423, 152 N. Y. Supp. 579. Where the complaint avers specific acts of adultery within five years and that prior to and subsequent to those dates defendant committed the same offense, an answer denying that five years

have not elapsed since plaintiff discovered the adultery is not frivolous. An answer which denies knowledge or information sufficient to form a belief as to the marriage, cannot be stricken out as frivolous where it appears by affidavit that defendant knows of no such marriage, and that if ever entered into it was at a time. when he was either drugged or so intoxicated as to be unable to understand that he was contracting a marital relation. Allen v. Allen (1908), 125 App. Div. 838, 110 N. Y. Supp. 303.

Where a husband was defeated in an action for absolute divorce and has failed to pay a judgment for costs, the wife in a subsequent action for separation is entitled to an order staying her husband's counterclaim for an absolute divorce upon the ground of the adultery charge in the former action until he pays the costs in said action. Haase v. Haase (1912), 149 App. Div. 775, 134 N. Y. Supp. 83.

Action for a separation in which the defendant husband counterclaimed by alleging a cause of action for absolute divorce and upon which he obtained judgment against the plaintiff. Evidence examined, and held, that the trial court was fully justified in finding the fact of adultery of the plaintiff. Olenick v. Olenick (1919), 185 App. Div. 809, 174 N. Y. Supp. 140.

Where there is a valid, existing separation agreement between a husband and wife, under which provisions is made for her support, she has no cause of action against the husband for separation and alimony in excess of the amount provided for in the agree ment. Benesch v. Benesch (1918), 182 App. Div. 221, 169 N. Y. Supp. 561.

Subd. 3. Trial.

(Fiero, Spec. Act., 3rd Ed., pp. 1087-1088.)

Where, in an action for separation, defendant counterclaims for an absolute divorce and his motion for a preference on the calendar as matter of right is granted, plaintiff's request that the trial be deferred until a day certain is not a waiver of her right to have the issues raised by the counterclaim and her reply thereto framed for a jury trial. Haff v. Haff (1909), 64 Misc. 122, 118 N. Y. Supp. 52.

Where a husband, sued for a separation on the ground of cruel and inhuman treatment, alleges the adultery of the plaintiff, not

as a counterclaim for absolute divorce as affirmative relief, but merely as a defense to the action for separation, he is not entitled to a jury trial on the issue of adultery. Wise v. Wise (1913), 159 App. Div. 575, 144 N. Y. Supp. 649.

Subd. 4. Evidence.

(Fiero, Spec. Act., 3rd Ed., pp. 1088-1089.)

"It is no doubt well settled that, to establish a case of 'cruel and inhuman treatment,' it is not necessary to prove actual physical violence, inflicted by the husband on the wife, such as by striking, but that is enough to prove a course on his part of ill treatment of her, by words of abuse or otherwise, which had the natural effect to keep her in a state of mental agony that is 'acts which indicated a studied and persistent attempt by the husband to render her life intolerable.' * * But mere incom

*

patibility of temperament, capricious or arbitrary conduct, and certainly mere difference of views as to domestic economy, for the conduct of daily life in respect to attendance upon places of entertainment, do not constitute legal grounds for a separation." Kinsey v. Kinsey (1910), 124 N. Y. Supp. 30.

A defendant husband sued for separation is not entitled to examine a witness before trial de bene esse for the purpose of preserving testimony that the plaintiff prior to her marriage had fraudulently stated that she was a person of good moral character while as a matter of fact she maintained meretricious relations with another person. Gould v. Gould (1908), 125 App. Div. 375, 109 N. Y. Supp. 910.

Action by a wife against her husband for separation. Evidence examined, and held, that the judgment for the plaintiff should be affirmed. Evidence that defendant described the plaintiff to friends and neighbors as mentally incompetent is hearsay and should not have been admitted, but the error is not ground for reversal when the decree is justified by other evidence. Junkins v. Junkins (1912), 151 App. Div. 77, 135 N. Y. Supp. 830, affd., 210 N. Y. 602.

In an action for separation on the sole ground of cruel and inhuman treatment, a judgment cannot be supported by evidence of defendant's failure to properly provide for the plaintiff, received