Opinion
June 1, 1953.
In an action for separation brought by a wife on the grounds of abandonment and nonsupport, her husband counterclaimed for separation on the ground of cruelty. Subsequently to joinder of issue on the complaint and counterclaim, defendant moved for leave to serve an "amended answer" so as to allege a counterclaim for divorce, the grounds for which arose after the said joinder; to enjoin plaintiff, pendente lite, from disposing of certain personal property; and to direct her to turn such property over to him. Plaintiff cross-moved for an order for leave to serve an "amended and supplemental complaint" within twenty days after the service of the proposed "amended answer", so as to allege a cause of action for divorce, the grounds for which existed when the action was started, and an additional cause of action for separation based on cruelty, some of the grounds for which existed at the time the action was started and some of which arose thereafter; and further to direct that issue be deemed joined as of the original date of joinder, to preserve her rights under alimony orders theretofore entered, and for an additional counsel fee of $2,500. Special Term granted defendant's motion to serve the "amended answer" and to direct that plaintiff turn over the personal property, but denied the motion insofar as it sought injunctive relief. The court granted plaintiff's cross motion to the extent of allowing a further counsel fee of $250 and otherwise denied the motion. Plaintiff appeals from the order insofar as it granted defendant's motion and denied her cross motion, and insofar as the order limited the additional counsel fee to $250. Order insofar as appealed from modified (1) by striking therefrom the first ordering paragraph; (2) by striking therefrom the third ordering paragraph and by substituting the following: "Ordered, that said cross motion is granted to the further extent of permitting service of an amended and a supplemental complaint, and it is further"; (3) by striking therefrom the fourth ordering paragraph and by substituting the following: "Ordered, that said defendant's motion is granted to the extent of permitting service of a supplemental answer alleging a counterclaim for divorce, and it is further"; (4) by striking therefrom the sixth ordering paragraph and by substituting the following: "Ordered, that said motion and said cross motion are in all other respects denied." As so modified the order is affirmed, without costs. The amended complaint and supplemental complaint are to be served within twenty days from the entry of the order hereon, and the supplemental answer is to be served within twenty days thereafter. The affirmance of the order insofar as it respects the further counsel fee of $250 is without prejudice to an application to the trial court, if plaintiff be so advised, for a further additional counsel fee by reason of the services occasioned by the new pleadings. While the parties mistakenly described the additional pleadings, which they sought leave to serve (Civ. Prac. Act, §§ 245, 245-a; 4 Carmody-Wait on New York Practice, p. 590), the mistakes may be disregarded, no prejudice having been occasioned by either party. (Civ. Prac. Act, § 105.) The disposition of the personal property is the type of issue which should not be decided on affidavits and should be decided on the trial. Under the circumstances, it was an improvident exercise of discretion to have denied plaintiff leave to serve an amended and a supplemental complaint. Nolan, P.J., Carswell, Adel, MacCrate and Schmidt, JJ., concur.