Cordier v. Cordier

Leonard, Justice. It is insisted that no former action was pending for the same cause when the present action was commenced, because the particular events charged [188] were not in all respects identical. The only difference in fact is the time when the adulteries are charged to have been committed. In each case the adultery is alleged to have been committed with the same person, and the relief sought is a divorce. At the hearing I was inclined to consider the answer sufficient; but, on further consideration, I have arrived at a different conclusion. The case comes within that class in which the defendant is entitled, on motion, to an order staying the plaintiff’s proceedings in one action, until the other (at the election of the plaintiff as to "the one in which he will proceed) shall be tried. (Clark agt. The Metropolitan Bank, 5 Sandf. 665.) The adulteries charged in the latter action occurred after the commencement of the former. I.entertain no doubt that a new cause of action is stated in the second complaint. Although the plaintiff might have proceeded by supplemental complaint in the former action, that practice was not compulsory, and the plaintiff might, as he has done, resort to a new action. The order appealed from is wrong, I think, in requiring the defendant to stipulate to refer the action as a consideration for leave to answer. If the defendant has any defence upon the merits, she should not be deprived of a trial in the usual manner. The order should be modified so as to permit the defendant to answer in ten days, and, in consideration of her sex, without costs. Barnard, J., concurred.