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New York Supreme Court, 1914

Levey v. Levey

Levey v. Levey
New York Supreme Court · Decided June 15, 1914 · Giegerich
148 N.Y.S. 417 (New York Supplement)

Counsel

Francis P. Burns, of New York City, for plaintiff., Abraham C. Cohen, of New York City, for defendant.

Levey v. Levey

Opinion of the Court

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.

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