Opinion
December 23, 1921.
McCombs Ryan [ Edward E. McCall of counsel; Frederick R. Ryan with him on the brief], for the appellant.
Harry Bijur of counsel [ Harold H. Herts with him on the brief], for the respondent.
Present — CLARKE, P.J., DOWLING, SMITH, PAGE and GREENBAUM, JJ.
We are of opinion that this complaint should be amended. It is unnecessary to review the case as explaining our conclusion. There are two causes of action, however, in the proposed amended complaint which the plaintiff will not be allowed to assert. The second cause of action is for a divorce by reason of improper relations with one Swami Abhedananda. From the record in our court, however, it appears that this happened ten years ago, and upon the motion for alimony when this case was before tried it appeared that the plaintiff had full knowledge of the facts upon which his cause of action was based. He should not be allowed, therefore, to rely upon any improper relations existing at that time.
From the seventh cause of action inserted in the proposed amended complaint it is sought to recover by reason of adultery committed after the commencement of this action. The authorities are uniform in holding that such an amendment should not be allowed. ( Faas v. Faas, 57 App. Div. 611; Campbell v. Campbell, 69 id. 435.)
The order should, therefore, be reversed and the motion granted so far as to grant leave to plaintiff to serve an amended complaint in the form proposed with the causes of action numbers second and seventh stricken therefrom, and upon payment by plaintiff of the costs of the action to date of application.
Order reversed and motion granted so far as to grant leave to plaintiff to serve amended complaint as indicated in opinion.