
    SUPREME COURT.
    Frank O. McCrea agt. Thomas A. McCrea.
    
      Answer—Action for divorce — Motion to strike out a pleading, when denied— Reference— 0ode of Civil Procedure, sections 538, 545, 546, 968.
    In an action brought by the wife against the husband for adultery where the defendant appeared and denied the adultery, and on the plaintiff’s motion the defendant was ordered to pay a certain sum towards the expenses of the action, and upon demand being made the defendant neglected and refused in toto to comply with the order, upon proof of these facts the plaintiff moves for an order "striking out the defendant’s answer and for an order of reference as in case of default: ”
    
      Held, that the motion should be denied. The only power possessed by the court to strike out a pleading, or to change and alter the same in any particular on a motion like this, is contained in sections 588, 545 and 546 of the Code of Civil Procedure; and this is not a case within either of those sections.
    So long as there is an issue framed by the pleadings, in an action for a divorce, there can be no reference.
    
      Cayuga Special Term, October, 1879.
    The parties are husband and wife. The plaintiff alleges adultery on part of the defendant, and asks for a decree of divorce.
    The defendant appears and denies the adultery.
    On the plaintiff’s motion, the defendant was ordered to pay seventy-five dollars to the plaintiff “towards the expenses of this action,” and to be paid in twenty days.
    A proper demand of payment was made on the defendant to perform order, and he neglected and refused m toto.
    
    On proof of these facts by affidavit, the plaintiff moves for an order “ striking out the defendant’s answer herein, and for an order of reference herein, as in case of default.”
    
      Mr. Hughitt, for motion.
    
      Mr. Tursión, opposed.
   Barker, J.

The motion is denied, without costs. It is held that the only power possessed by the court to strike out a pleading, or to change and alter the same in any particular, on a motion like this, is contained in sections 538, 545 and 546 of the Code. It is not pretended hy the counsel for the plaintiff that he has made a case within either section.

In a proceeding to adjudge the defendant guilty of a contempt, it may he the court can, as a means of punishment, strike out his answer. On that point, I do «not now express my opinion.

So long as there is an issue framed hy the pleadings, in an action for divorce, there can be no reference (2 R. S., p. 145, sec. 40, marginal; Code, 968; Batzel agt. Batzel, 54 How. Pr., 139).  