Misc.]

Supreme Court, October, 1919.

William P. Burr, corporation counsel (Joseph I. Berry and F. E. V. Dunn, of counsel), for defendants.

Meier Steinbrink, for intervenor.

FABER, J. This proceeding was instituted by the relator, who is the owner of premises situated at the northeast corner of Franklin avenue and President street, in the borough of Brooklyn, to review the action of the board of appeals in granting to the owner of premises located at the northwest corner of said Franklin avenue and President street permission to erect thereon a public garage. The superintendent of buildings refused to grant the permit upon the ground that the premises upon which such garage was proposed to be erected were located within a business district, and therefore the erection of a garage thereon. would be in violation of section 4, subdivision 15, of the building zone resolution adopted July 25, 1916, by the board of estimate and apportionment of the city of New York, which prohibits the erection of garages for use by more than five motor vehicles in a business district, subject, however, to the exceptions contained in section 7, subdivision e, of said resolution. An appeal was taken by the respondent, intervenor, from the decision of the superintendent of buildings to the board of appeals, and such board, after a hearing of the matter, reversed the decision of the superintendent and granted the desired permit. The premises owned by the respondent, intervenor, are concededly located in a "business zone" as established by said zone resolution. Section 4, subdivision 15, of said building zone resolution provides as follows:

"Sec. 4. Business Districts. In a business district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed

[Vol. 109.

Supreme Court, October, 1919.

to be used, for any of the following specified trades, industries or uses:

than five motor vehicles.

(15) Garage for more

Section 7, subdivision e, of said zone resolution, as amended, provides as follows:

*

"Sec. 7. Use District Exceptions. The Board of Appeals may in appropriate cases determine and vary the application of the use district regulations herein established in harmony with their general purpose and intent, as follows:

(e) Permit in a business district the erection or extension of a garage or stable in any portion of a street between two intersecting streets in which portion there exists a garage for more than five motor vehicles or a stable for more than five horses at the time of the passage of this resolution:

It is claimed by the respondent, intervenor, that a garage for more than five motor vehicles exists on the south side of said President street between said Franklin avenue and Classon avenue (which is the street one block west of Franklin avenue), and therefore subdivision e of section 7 applies and that the decision of the board of appeals is correct. With this contention I am unable to agree, for the reason that the alleged existing garage on the south side of President street is 100 feet west of Franklin avenue and is not within the "business district" zone, and, therefore, does not come within the provisions of the section which reads in any portion of a street between two intersecting streets in which portion there exists a garage.' The words" in which portion " mean clearly that portion within the business district. The writ should be sustained, with costs, and the resolution of the board of appeals reversed.

Ordered accordingly.

Misc.]

Supreme Court, October, 1919.

FLORENCE L. AMES, Plaintiff, v. MILLARD R. AMES, Defendant.

(Supreme Court, Onondaga Special Term, October, 1919.)

Separation pleading.

proper allegations in

supplemental

answer

The defendant in an action for a separation on the ground of cruel and inhuman treatment may be allowed to serve a supplemental answer alleging acts of adultery committed by plaintiff prior to and since the commencement of the action.

This action is brought by the plaintiff for separation en the ground of cruel and inhuman conduct. The defendant moves for leave to make and serve a supplementary answer, setting up acts of adultery committed by plaintiff prior to and subsequent to the commencement of the action.

Richard J. Shanahan, for plaintiff.

Costello, Burden, Cooney & Walters (Oliver D. Burden, of counsel), for defendant.

Ross, J. The right in an action for separation of a defendant to set up as a defense and counterclaim acts of adultery committed prior to the commencement of the action has existed since 1881. Code Civ. Pro. § 1770; Van Benthuysen v. VanBenthuysen, 15 Civ. Pro. 234; Wise v. Wise, 159 App. Div. 575, 576.

The right to interpose matters arising after suit is brought is not so clear.

In an action for an absolute divorce, the plaintiff will not be permitted to serve a supplementary complaint, setting up acts of adultery alleged to have been committed by the defendant since the joinder of issue.

Supreme Court, October, 1919.

[Vol. 109. Campbell v. Campbell, 69 App. Div. 435; Halsted v. Halsted, 5 Misc. Rep. 416; affd., 7 id. 723; Neiberg v. Neiberg, 8 id. 97.

In an action by a wife to obtain a separation from her husband on the ground of cruel and inhuman treatment, she will be allowed to serve a supplemental complaint alleging acts of cruel and inhuman treatment which occurred subsequent to the commencement of the action, this in aid of the cause of action stated in the original complaint. Smith v. Smith, 99 App. Div. 283.

So much for the rights of a plaintiff in an action, either for a divorce or separation. With reference to the rights of a defendant, the court has power to permit a defendant in an action of divorce for adultery to plead as a counterclaim, as well as a defense, by supplemental answer, acts of adultery committed by the plaintiff since the action was begun. Blanc v. Blanc, 67 Hun, 384.

"Public

In the case last cited, Follett, J., says: policy, the interests of society and of the litigants alike demand that the rights of the parties should be determined in a single action, unless by so doing some statute or rule of procedure settled by reported cases is violated."

No case has been cited in which the defendant in an action for separation sought to plead as a counterclaim by supplemental answer acts of adultery committed by the plaintiff since the action was begun, but it seems to me that the ground of decision in the case of Blanc v. Blanc is equally applicable to a case of this character. If the defendant can establish the facts which he desires to plead by supplemental answer, it would be a ground in a proper case for the dissolution of the contract of marriage, and it would seem to be. unnecessary and inconsistent with the general theory of

Misc.]

County Court, Oneida County, October, 1919.

the administration of law to compel the defendant in this action, whatever may be its result, to bring another action, based upon the claimed acts of adultery committed subsequent to the joinder of issue herein, which he desires to set up by supplemental answer, which, if proved, would render nugatory the judgment in the action now pending.

The distinction between the case of a plaintiff and a defendant, each of whom seeks to set up facts accruing after the commencement of the action, was stated by Judge McAdam in the following language: "A plaintiff may discontinue and sue over again, while a defendant cannot.'" See Halsted v. Halsted, 5 Misc. Rep. 417.

Motion granted.

MICHAEL KANTOR, Respondent, v. JOHN KWIECENSKI, Appellant.

(County Court, Oneida County, October, 1919.)

Justices' Courts — jurisdiction of city of Utica

66

regarded as a town"- Code Civ. Pro. § 2869.

what may be

For the purposes of section 2869 of the Code of Civil Procedure the city of Utica may be regarded as a town."

66

The Justice's Court of the city of Utica has jurisdiction of an action where both of the parties are residents of an adjoining town where the summons was served.

APPEAL on questions of law from a judgment of Justice's Court, city of Utica.

Charles J. Fuess, for appellant.

Leo O. Coupe, for respondent.