Eisenberg v. Eisenberg

Order, Supreme Court, New York County, entered January 22, 1975, unanimously modified, on the law and the facts, to reinstate the second counterclaim, and otherwise affirmed; order of Gomez, J. entered on the same date awarding plaintiff temporary alimony, support and counsel fees unanimously affirmed. Plaintiff shall recover of defendant-appellant one bill of $60 costs and disbursements. In this divorce action by the plaintiff wife, wherein defendant husband counterclaimed for like relief, the answer alleged adultery in the first counterclaim, and, in the second counterclaim, cruel and inhuman treatment (Domestic Relations Law, § 170, subd [1]). The latter is sufficiently pleaded, Hessen v Hessen (33 NY2d 406), while the adultery claim was vague and incomplete (see Foster & Freed, Law and the Family, vol 1 [rev ed], § 5:36, p 164), and was properly dismissed with leave to replead. Concur—Kupferman, J. P., Tilzer, Capozzoli, Lane and Nunez, JJ.