Bruce v. Bruce

This action is for separation. Defendant moves to strike out the following allegation of the complaint herein: “ On or about the 25th day of December, 1918, at the residence of plaintiff and defendant in Lyons Falls, New York, the defendant without any provocation struck and beat plaintiff, severely injuring her face and body,” on the ground that it is not available as a basis for separation, being barred by the ten-year Statute of Limitations (Civ. Prac. Act, § 53). On the argument of the motion, my impression was that it should be stricken out, but, on examination of the subject, I concluded that, although the ten-year Statute of Limitations applies to a separation action, in order for the court to *504pronounce the proper judgment, it should be informed of the general course of treatment accorded the plaintiff by the defendant during the entire marriage period. In the instant case, if plaintiff fail to establish the allegations of the complaint, excepting the one above set forth, she could not sustain a recovery as under a proper plea. Action upon that particular charge would be barred.

The motion to strike out is denied, with ten dollars costs to abide event. Ordered accordingly.