McCrea v. McCrea

Decided October 15, 1879

New York Supreme Court · decided 1879-10-15

The parties are husband and wife. The plaintiff alleges adultery on part of the defendant, and asks for a decree of divorce. The defendant appears and denies the adultery. On the plaintiff’s motion, the defendant was ordered to pay seventy-five dollars to the plaintiff “towards the expenses of this action,” and to be paid in twenty days. A proper demand of payment was made on the defendant to perform order, and he neglected and refused m toto.

Cited by 2 later decisions — most recently January 1903

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1879-10-15

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Barker, J.

¶1The motion is denied, without costs. It is held that the only power possessed by the court to strike out a pleading, or to change and alter the same in any particular, on a motion like this, is contained in sections 538, 545 and 546 of the Code. It is not pretended hy the counsel for the plaintiff that he has made a case within either section.

¶2In a proceeding to adjudge the defendant guilty of a contempt, it may he the court can, as a means of punishment, strike out his answer. On that point, I do «not now express my opinion.

¶3So long as there is an issue framed hy the pleadings, in an action for divorce, there can be no reference (2 R. S., p. 145, sec. 40, marginal; Code, 968; Batzel agt. Batzel, 54 How. Pr., 139).