Ceva v. Ceva ( 1946 )

Pecora, J.

In this action for separation, defendant has interposed an amended answer containing two affirmative defenses and one defense and counterclaim. Plaintiff moves to dismiss the defenses as insufficient in law and the counterclaim as not having been properly interposed in the action. Section 1163 of the Civil Practice Act permits a defendant in an action for separation to set up as a defense, in justification, the misconduct of plaintiff. The first defense in the amended answer alleges in general terms that the cruelty of defendant, if committed, was caused solely through the provocation and misconduct on the part of the plaintiff. No ultimate facts are alleged. The defense merely states conclusions in the language of section 1163 of the Civil Practice Act. As such the defense is defectively pleaded and "will lie stricken. The second defense charging failure and refusal to cohabit is likewise improperly pleaded. There is no allegation of willful refusal without any adequate excuse. (See Mirizio v. Mirizio, 242 N. Y. 74.) The motion directed to that defense will therefore be granted. The third defense and counterclaim seeks a judgment directing plaintiff to turn over to defendant certain moneys and property which he claims he gave to plaintiff to save for him. By no process of argument can the facts there alleged be construed as a defense to plaintiff’s action for separation, and as a defense it must be stricken. As a counterclaim it is improperly interposed in an action for separation. Section 1168 of the Civil Practice Act provides for counterclaims in matrimonial actions. That section must be construed to provide that in an action for divorce, separation or annulment the only counterclaims which may be interposed are causes of action for divorce, separation or annulment. Obviously the counterclaim herein states no such cause of action. The motion to dismiss the counterclaim is therefore granted. Defendant may serve an amended answer within ten days after service of a copy of the order to be entered hereon, with notice of entry. Settle order accordingly.