Swertz v. Swertz
| Decision Date | 15 February 1961 |
| Citation | 28 Misc.2d 904,211 N.Y.S.2d 252 |
| Parties | Edward P. SWERTZ, Plaintiff, v. Rosemarie E. SWERTZ, Defendant. |
| Court | New York Supreme Court |
Henry J. O'Brien, Buffalo (Joseph J. Lyons, Buffalo, of counsel), for plaintiff. Cohen, Lombardo, Blewett & Fisher, Buffalo (James I. Spandau, Buffalo, of counsel), for defendant.
This is a motion brought by the defendant wife against the plaintiff husband for (1) counsel fees; (2) an allowance for the support, maintenance and education of the minor children of the marriage, and (3) an order to strike the counterclaim contained in the plaintiff's reply.
It appears that the plaintiff instituted this action for a judgment to declare invalid a decree of divorce obtained by the defendant in the State of Alabama on March 15, 1960. An answer containing a general denial was interposed by the defendant as well as a counterclaim for a separation in the event the court finds the Alabama decree invalid. The reply by the plaintiff contains a counterclaim for separation.
Let us first consider the question of pleadings in this action, that is, whether a counterclaim may be interposed in a reply . The court is not aware of any authority permitting same. On the contrary, all of the authorities known to the court have held consistently that a reply cannot be resorted to for the purpose of amending a complaint, nor is it within its province to introduce a new cause of action. Rosen v. Rosen, 267 App.Div. 770, 45 N.Y.S.2d 216; Young v. Dresser, 137 App.Div. 313, 122 N.Y.S. 29; Frank Brewing Co. v. Hammersen, 22 App.Div. 475, 48 N.Y.S. 30; Windecker v . Mutual Life Ins. Co. of New York, 12 App.Div. 73, 43 N.Y.S. 358; Eidlitz v. Rothschild, 87 Hun 243, 33 N.Y.S. 1047; Carmody, New York Pleading and Practice, Vol. 3, § 1021. The remedy of the plaintiff, of any, is to move to amend his complaint.
Defendant's motion to strike the counterclaim contained in the plaintiff's reply is granted, with leave to the plaintiff to amend his complaint within ten days.
The next question to be determined by the court is that of an allowance for the support, maintenance and education of the children of this marriage. There appears to be no dispute that the defendant had been receiving regularly from the plaintiff the sum of $40 weekly for their support and maintenance. Inasmuch as this sum appears to have been adequate for a considerable time and there being no showing made of any change of circumstances, the court directs that the plaintiff continue the payment of $40 each and every week until the trial of this action.
Right of visitation to the plaintiff as agreed upon with the defendant in an agreement dated September 27, 1956 is continued.
There remains for the court to determine whether the defendant wife is entitled to an allowance for counsel fees in order to defend an action brought by the plaintiff husband for a judgment to declare invalid a foreign judgment of divorce obtained by the defendant wife .
The powers of the court to award counsel fees in a matrimonial action are solely those conferred upon it by statute (Johnson v. Johnson, 206 N.Y. 561, 100 N.E. 408; Doncourt v. Doncourt, 245 App.Div. 91, 281 N.Y.S. 535, affirmed 275 N.Y. 470, 471, 11 N.E.2d 302, 303).
Section 1169 of the Civil Practice Act gives the court the authority to grant the wife the necessary funds to carry on or defend the action, and to support herself and children during the pendency thereof. The defendant contends that this action is obviously a matrimonial action and, as such, comes under the provisions of that section. The court cannot agree, since the nature of her defense indicates that there is no existing marriage between the parties, and therefore no ground upon which the alleged wife may be granted the relief authorized by § 1169 of the Civil Practice Act.
The defendant here claims a valid Alabama divorce decree, which must be recognized by our court as a valid judgment dissolving the marriage of the parties until its nullity has been proved by the plaintiff. Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; 325 U.S. 226, 65 S.Ct. 1092, ...
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Garfinkle v. Kaplan
...simply no rule or statute which permits such procedure, whether it be called a counterclaim or dressed up as a reply. (Swertz v. Swertz, 28 Misc.2d 904, 211 N.Y.S.2d 252; Habiby v. Habiby, 23 A.D.2d 558, 256 N.Y.S.2d 634). This is particularly true in the Civil Court, where although counter......
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