Plohn v. Plohn , 130 N.Y.S.2d 869 ( 1954 )

We find that the application to amend the complaint so as to plead the adulteries as an action for separation in place of an action for divorce should have been granted in the exercise of discretion. We note that the earlier decision of the Appellate Division, Third Department (282 App. Div. 1107), denying leave to discontinue included a suggestion that a nonsuit might be suffered, which would not bar an action for separation. Denial of discontinuance appears to have been due to the large counsel fee awarded and the long duration of the litigation. For these very reasons and to avoid waste of the time and money consumed in prior examinations before trial, etc., we consider that the proper disposition of the matter is to permit amendment on condition that the case proceed to trial in New York County as soon as the new pleadings are completed, and without further examination even as to any added allegations or any other dilatory steps. Order, so far as appealed from, unanimously modified by granting the motion for leave to amend and, as so modified, affirmed. Settle order on notice. Present — Peck, P. J. Dore, Callahan, Breitel and Bergan, JJ.