People ex rel. Mugnolo v. McGrath

Appeal from so much of an order granting appellant leave to serve an “ amended and supplemental” complaint containing three causes of action as denies leave to include therein a fourth cause of action for a separation. The first three causes of action seek to set aside a separation agreement between the parties on various grounds. Order modified by striking therefrom the second ordering paragraph and by inserting in the first ordering paragraph a provision that the fourth proposed cause of action may be included in the complaint to be served. As so modified, order insofar as appealed from affirmed, with $10 costs and disbursements to appellant. A cause of action for separation may be joined with a cause of action to set aside a separation agreement (Dolan v. Dolan, 259 App. Div. 1115). We express no opinion as to whether the cause of action for separation may be barred under the doctrine of res judicata, that question not being an appropriate one for determination on a motion of this nature. (Cf. Brewster v. Brewster Co., 138 App. Div. 139, 140; see Amodeo v. McLaughlin, 5 A D 2d 680.) While there is no authority for an “amended and supplemental” complaint, the irregularity may be disregarded, no prejudice having been occasioned thereby (Austin v. Saccacio, 1 A D 2d 1028). Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.