Opinion
January, 1922.
Harold M. Greenbaum, for defendant.
Plaintiff defaulted at the trial, and her counsel stated in open court that she had directed him to abandon the action. Defendant thereupon gave proof of his counterclaim. On investigation I think that a counterclaim for annulment may not be interposed in an action for a separation. See Civil Practice Act, § 1168; Code Civ. Pro. § 1770; Murphy v. Murphy, 194 A.D. 395; Ostro v. Ostro, 169 id. 790, 791. In an ordinary civil action where a defective pleading has been interposed but objection thereto has not been taken, it will be deemed to have been waived. But the situation here is measurably different. While it may not be said that this court sitting in equity has not original inherent jurisdiction to set aside a contract of marriage on the ground that it was induced by fraud, the same as it has in the case of any other contract similarly induced, still I think that of its own motion the court should recognize the fact that the marriage contract and its dissolution is affected by certain considerations of public policy, which should in proper circumstances have weight. In this class of actions the legislature has seen fit to prescribe certain conditions under which the jurisdiction of the court should be exercised, and I do not think that the parties should, by their failure to urge this point, thus procure the court to render a decree that would at least be irregular. Judgment may be taken dismissing the complaint and the counterclaim as well.
Judgment accordingly.