
    SPAHN v. SPAHN.
    N. Y. Supreme Court, First District, Special Term,
    
    
      January, 1883.
    Divorce.—Counter-claims under § 1770, Code Civ. Pro.
    Under section 1770 of the Code of Civil Procedure, the defendant, in an action for divorce, is not limited to a counter-claim under one of the two articles therein mentioned, but may set up both adultery and cruelty.
    Motion to compel defendant to elect between two counter-claims set up in her answer.
    The action was brought by the plaintiff for an absolute divorce from the defendant.
    The answer denied the adultery charged in the complaint, and set up two counter-claims, one alleging cruel and inhuman treatment, and the other alleging the adultery of the plaintiff. Affirmative judgment upon these counter-claims for a separation, or for an absolute-divorce, was demanded by the defendant.
    This is a motion to compel the "defendant to elect upon which of these two counter-claims she will rely. Section 1770 of the Code of Civil Procedure, provides : “When an action is brought by either husband or wife, as prescribed in either of the last two articles, a cause of action against the plaintiff and in favor of the defendant, arising under either of the said articles, may be interposed, in connection with a denial of the material allegations of the complaint, as a counterclaim.” Of the two preceding articles, the second and third of the title, the former (art. 2) related to divorce for adultery; the latter (art. 3) to separation for cruelty, &c.
    
      The question therefore arises whether, under this section, a defendant can, in connection with a denial of the adultery charged in the complaint, set up a counter-claim for cruelty, and also one for adultery, or whether she is restricted to the choice of one or the other of these.
    
      George E. Mott (A. P. Fitch, attorney), for the motion.
    A plaintiff, in an action for a divorce or separation, must choose which of the two actions he will bring. He cannot join these two causes of action in the same complaint. And the defendant in this action, as to the counter-claims interposed by her, is really in the position of a plaintiff bringing a cross action. She can, under section 1770 of the Code of Civil Procedure, interpose a counter-claim upon either, but not upon both, grounds.
    A construction enabling her to counter-claim both the cruelty and adultery, would place her in a more favorable position than the plaintiff, who can only proceed upon one of these causes of action. Such could not have been the intention of the Legislature ; and such a construction would lead to great embarrassment in the prosecution of the action, counterclaim for a divorce being triable before a jury, and the counter-claim for separation, at special term.
    
      Theodore Connoly (Connoly & Holme, attorneys), opposed.
    The entire question seems to hinge on the meaning of the word “either” in this section of the Code. The best authorities use the word “either,” in the sense of one and the other of two things, as well as one or the other. This is the definition ■ given in Abbott's Law Dictionary, Webster's Dictionary, and a very recent work {Winfield's Adjudged Words and Phrases).
    
    It is believed that the only direct adjudication upon the words is the following : “ The word 6 either/ is sometimes used in the sense of one or the other of several things, and sometimes in the sense of one and the other. Its use in the last sense is not infrequent. Thus, it is common to say, on either hand, on either side, meaning thereby, on each hand or side” (Chidester v. Springfield, &c. Ry. Co., 59 Ill. 87).
    It is plain that the provision of the section under discussion, should be construed in the last sense, which is equivalent to ££<?ae7¿.”
   Barrett, J. (Orally.)

There is nothing in section 1770 of the Code of Civil Procedure, to limit the defendant to a counter-claim under one of the two articles there mentioned. I think it was the intention of the Legislature to enable the parties in such cases, to settle all their controversies in one action.

Motion denied, but, as the question is new, without costs. 
      
       The rule thus established supersedes in effect the ruling in Terhune v. Terhune, 40 How. Pr. 258, and R. F. H. v. S. H., 40 Barb. 9. The general rule in other States I understand to be that the right to counter-claim, affirmative relief in matrimonial actions, is not recognized any further than it is given by express statute, and that general provisions of statute allowing a defendant to ask affirmative relief in his answer, will not be extended so as to sanction counter-claim in divorce.
      The interposition of the counter-claim under the statute gives the defendant a right to resist discontinuance, and insist on trial. Campbell v. Campbell, 12 Hun, 636; and see Owen v. Owen, 54 Geo. 526; Hoff v. Hoff, Mich. Apr. 25, 1882, 12 Northw. R. 160.
      As to recrimination, see section 1765, and Doe v. Doe, 23 Hun, 19.
     