White v. White

This action was brought by a wife to recover for necessaries purchased with her own funds during a period when she was separated from her husband. The defendant counterclaimed for separation on the ground of abandonment.

Counterclaims of this character by section 1168 of the Civil Practice Act are expressly limited to actions brought by the plaintiff for divorce, separation or annulment. The amendment to section 266 of the Civil Practice Act in 3.936 eliminating the *582restrictions theretofore existing under that section as to the interposition of counterclaims did not alter the specific restrictions imposed by section 1168. To hold to the contrary would render section 1168 meaningless, and furthermore, such a construction is not possible since section 1168 was amended a year later (L. 1937, ch. 525) to include actions for annulment of marriage, a fact which conclusively indicates that such sections must be considered together, and that section 1168 limits the scope of application of section 266.

The order, so far as appealed from, should be modified by granting the motion only to the extent of dismissing the first counterclaim alleged in defendant’s answer, and as so modified affirmed, with $20 costs and disbursements to the appellant.

Martin, P. J., Townley, Dore, Callahan and Peck, JJ., concur.

Order, so far as appealed from, unanimously modified by granting the motion only to the extent of dismissing the first counterclaim alleged in defendant’s answer and as so modified affirmed, with $20 costs and disbursements to the appellant.