Opinion
March 11, 1948.
Hayes, St. John, Abramson Schulman for plaintiff.
Wellman Smyth for defendant.
Plaintiff brought this action for a legal separation from the defendant. The answer of the defendant is, in substance, a general denial. He sets up a counterclaim for an annulment of the marriage of the parties hereto on the ground that the plaintiff was not legally divorced from her first husband. Plaintiff served a reply to the defendant's said counterclaim generally denying the allegations thereof.
Plaintiff moves for a jury trial upon all the issues raised by the pleadings, particularly as a matter of right on the issues raised by the defendant's counterclaim under the provisions of sections 429 and 1142 of the Civil Practice Act and under section 2 of article I of the State Constitution.
Defendant moves, by cross motion, to withdraw his counterclaim, thereby avoiding trial thereof by jury and to permit it to stand as a defense. Plaintiff maintains the right to proceed on the counterclaim on the issues raised.
In seeking a trial by jury on the other issues, the application is addressed to the discretion of the court as authorized by section 430 of the Civil Practice Act. This branch of the application is denied, not being made within the time limited by rule 157 of the Rules of Civil Practice.
The defendant urges that he has the right to withdraw his counterclaim at any time. In an action for an annulment of marriage brought against the wife, claiming a prior marriage as the cause of invalidity, where the invalidity is denied, it is held she is entitled to have the marriage status of the parties determined, and that the husband's motion thereafter to discontinue the action is properly denied ( Erlanger v. Erlanger, 173 A.D. 767). Defendant's motion to discontinue the counterclaim is accordingly denied.
The plaintiff is entitled to a jury trial upon the issues raised by the counterclaim and reply ( Morrell v. Morrell, 17 Hun 324; Civ. Prac. Act, §§ 429, 1142), and the motion is granted. Settle order.