Levey v. Levey

GIEGERICH, J. The defendant in an action for a separation has interposed a counterclaim to annul his marriage to the plaintiff on the ground of his own physical incapacity. Such a counterclaim cannot be asserted. Section 1770 of the Code of Civil Procedure, relative to counterclaims in matrimonial actions, confines the right of counterclaim to counterclaims for a divorce or a separation, and by implication excludes a counterclaim- to annul a marriage. Durham v. Durham, 99 App. Div. 450, 91 N. Y. Supp. 295; Taylor v. Taylor, 25 Misc. Rep. 568, 55 N. Y. Supp. 1052. Demurrer sustained, with costs.