
    Carl Spielvogel, Appellant, v Roslyn B. Spielvogel, Respondent.
   Order of the Supreme Court, New York County, entered December 27, 1979, granting defendant’s motion to vacate the judgment of divorce granted on default and vacating said judgment affirmed, without costs. Order of the Supreme Court, New York County, entered January 2,1980, granting, in part, a protective order; striking the affirmative defense and the second counterclaim with leave to replead and denying summary judgment, modified, on the law, to the extent of granting summary judgment for a conversion divorce and denying leave to replead the affirmative defense and second counterclaim; and otherwise affirmed, without costs. Plaintiff sued defendant for a conversion divorce. After defendant’s default in answering had been vacated, she interposed an answer which, in addition to denials, asserted the affirmative defense that plaintiff had failed to comply with the separation agreement between the parties, and four counterclaims. The first counterclaim is for a conversion divorce while the second seeks a divorce bottomed on cruel and inhuman treatment. The third and fourth counterclaims seek reformation of the separation agreement and counsel fees, respectively. Inasmuch as both parties seek a conversion divorce and it is plain that one or the other, or perhaps both, is entitled thereto, we think it neither wise nor appropriate to consume scarce judicial time by prolonging this patently dead marriage. To do so would serve only the purpose of enabling the parties publicly to vent their spleen against each other. Accordingly, we modify to grant summary judgment to the extent only of authorizing the conversion divorce. The effect of this modification is to render superfluous the affirmative defense of the failure by plaintiff to comply with the terms of the separation agreement and the second counterclaim for a divorce bottomed on cruel and inhuman treatment. Accordingly, we modify to the extent of denying leave to replead. The effect of this determination is to leave standing the third and fourth counterclaims seeking reformation of the separation agreement and counsel fee. These counterclaims are severed and shall proceed in regular order. Concur — Kupferman, J. P., Birns, Ross, Bloom and Carro, JJ.  