Dikranian v. Dikranian

Cohn, J. The action is to annul a marriage. Respondent alleges that when he married appellant on September 24, 1924, she was the wife of another. Appellant’s answer to the complaint consists of a denial of the allegation that her marriage was bigamous and three counterclaims: (1) to set aside a purported separation agreement; (2) for separation on the ground of cruelty, and (3) for separation on the ground of non-support. In the circumstances of this case we think that the court properly exercised its discretion in denying appellant’s application for alimony pendente lite and for an allowance to cover expenses for purposes of investigation. However, as respondent is assailing the validity of the marriage and desires to destroy the relationship which has existed between the parties for many years, appellant in this case should be afforded the means of defending herself in such an action. (Civ. Prac. Act, § 1169, as amd. by Laws of 1940, chap. 226; Higgins v. Sharp, 164 N. Y. 4.) Appellant’s first counterclaim, which seeks to set aside the separation agreement entered into between the parties for inadequacy and inequity, was properly interposed and should not have been dismissed. It has been held that a cause of action to set aside an existing separation agreement may be joined with a separation action. (Dolan v. Dolan, 259 App. Div. 1115; Landes v. Landes, 172 id. 758; Zysman v. Zysman, 140 Misc. 617, 619.) Since the counterclaim is matrimonial in nature it may, notwithstanding the provisions of section 1168 of the Civil Practice Act, be joined with defendant’s second and third counterclaims which seek, respectively, a separation for cruelty and non-support. The order should be modified by denying respondent’s cross-motion to dismiss appellant’s first counterclaim and by granting an allowance to appellant of seventy-five dollars for counsel fees, and, as so modified, affirmed, with twenty dollars costs and disbursements to the appellant, with leave to the plaintiff to reply within ten days after service of order on payment of said costs. Martin, P. J., O’Malley, Townley and Dore, JJ., concur. Order unanimously modified by denying plaintiff’s cross-motion to dismiss defendant’s first counterclaim and by granting an allowance to appellant of seventy-five dollars for counsel fees, and, as so modified, affirmed, with twenty dollars costs and disbursements to the appellant, with leave to the plaintiff to reply within ten days after service of order on payment of said costs.