Ferrer v. Ferrer

In an action for absolute divorce, defendant’s answer, in addition to a general denial, contains an affirmative defense alleging that approximately one year prior to the commencement of the action she had obtained a valid decree of divorce from plaintiff herein in the State of Nevada. Pursuant to subdivision 3 of section 443 of the Civil Practice Act, defendant moved for an order directing that the issues raised by the affirmative defense be tried prior to the trial of the issue of adultery. The motion was denied and defendant appeals. Order reversed on the law, with $10 costs and disbursements, and the motion *1039granted, without costs. In our opinion it was an improper "exercise of discretion to deny the motion. Close, P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.