Stafford v. Stafford

Per Curiam:

The action is for a divorce on the ground of adultery alleged to have been committed by the defendant with the corespondent, Kate Heins. The defendant interposed an answer denying the charges of adultery. The issues as to defendant’s adultery were, pursuant to order of the court, tried by a jury and were determined in favor of the plaintiff. Shortly after the jury’s verdict was had and before the plaintiff’s application for interlocutory judgment was to be heard at Special Term a notice of appearance in said action by the attorney for the corespondent and a demand of service of a copy of the complaint was served on plaintiff’s attorney. Ho copy of the summons and complaint in said action had been theretofore served upon the corespondent.

Corespondent’s application, which was denied by the order appealed from, was based solely upon the affidavit of her attorney. It is therein alleged that he was authorized by her to appear for her and take such action as he deemed advisable, and that he thereupon served upon plaintiff’s attorney a notice of appearance for her and a demand that a copy of the summons and complaint he served upon him as such attorney. He further alleges that, after a copy of the summons and complaint shall have been served, “ on behalf of said Kate Heins at her request he intends to serve an answer denying the allegations of the complaint in so far as they relate to the co-respondent, Kate Heins.” Beyond the purpose of corespondent’s attorney, thus alleged, to interpose an answer at the request and in behalf of the corespondent nothing appears in the affidavit upon which the motion is based tending in any way to controvert the allegations in the complaint as to the adultery of the defendant with the corespondent. The corespondent’s application for a stay should at least have been supported by .her affidavit denying the truth of the charges of adultery made in the complaint. Having failed to do this the stay was properly denied.

We do not pass upon the question whether, if such affidavit had been presented, a stay might properly be granted, as in our view of the case that question is not now before us.

The order should be affirmed, with ten dollars costs and disbursements, but without prejudice to a new motion at Special Term upon proper papers for the relief sought by the present motion.

All concurred, except Kruse, P. J., and Lambert, J., who dissented, in a memorandum by Kruse, P. J.