
    Isabelle Newell, Plaintiff, v. Edward J. Newell, Defendant.
    (Supreme Court, New York Special Term,
    April, 1899.)
    Practice — Leave to serve supplemental answer refused — Requirements.
    A motion for leave to serve a supplemental answer will be denied where the proposed pleading has not been served and is not presented to. the court, and where there is no proof that an affidavit of merits has been served and filed as required by rule 23 of the General Rules of Practice.
    
      Motion for leave to serve a supplemental answer, and for a modification of the order directing the payment of alimony to the plaintiff, pendente lite.
    
    Friend, House & Grossman (Frederick B. House, of counsel), for motion.
    David K. Case, opposed.
   Giegerich, J.

Although the notice of motion asks for “ leave, to serve a supplemental answer,” yet such proposed pleading has neither been presented to the court nor served with motion papers, and, therefore, the application must be denied. Stern v. Knapp, 8 Civ. Pro. 54; Noxon v. Glen, 2 N. Y. St. Repr. 662. Moreover, the papers upon which such motion is based are defective, because they fail to show, in conformity with the requirements of Rule 23 of the General Rules of Practice, the service and filing of an affidavit of merits. The motion for leave to serve a supplemental answer is, therefore, denied, with $10 costs, but with leave to renew upon additional papers. The application for a modification of the order directing the payment of alimony to the plaintiff, during the pendency of the action, is referred to the justice who signed the same. The motion to punish the defendant for contempt for failure to comply with the terms of such order may be renewed, upon proper notice, after the determination of such application.

Ordered accordingly.  