Heyde v. Heyde

The above points were held by

at special term, wjth the concurrence of Duer, Campbell, and Bosworth, J. J. Upon- the default of the defendant to answer, a motion *693was made by the plaintiff for a reference to take proof of the adultery charged in the complaint. The charge in the complaint was, that “ the defendant, since the marriage, viz., in the month of November, 1851, committed adultery with a female in the city of New York, whose name is unknown to the plaintiff, and the particular circumstances whereof are unknown to the plaintiff, but which she expects to be able to prove at the trial of this cause.”

The judge said it would be dangerous to proceed on such an indefinite allegation. ^ If the party have information sufficient to warrant the belief that the offence has been committed, or the expectation that it can be proved on the trial, that information must extend, at least to the particular place or locality where it occurred, though the name of the person with whom may be unknown. He referred to Wood v. Wood, 2 Paige, 113; Codd v. Codd, 2 J. C. R. 224; and 2 Barb. Ch. Pr. 256.