
    Roslyn Tarnower, Respondent, v. Philip Tarnower, Appellant.
    First Department,
    June 1, 1928.
    
      Aron Steuer of counsel [Max D. Steuer, attorney], for the appellant.
    
      David Vorhaus of counsel [Leo J. Bosett with him on the brief; House, Grossman & Vorhaus, attorneys], for the respondent.
   Proskauer, J.

In this action for a separation the defendant has set up an affirmative defense of plaintiff’s alleged adultery. This appeal is from an order of the Special Term granting plaintiff’s motion to frame the issue raised by this separate defense for trial before a jury. Appellant’s contention that the plaintiff is not entitled to this relief as of right under section 429 of the Civil Practice Act may be assumed to be correct for the purposes of this appeal; but the motion was made specifically for an order under section 430 of the Civil Practice Act,” which provides that the court may in its discretion direct a jury trial upon a specific issue where a party is not entitled to this as a matter of right. The discretion of the court at Special Term was correctly exercised here in the plaintiff’s favor. In his first answer the defendant set up a counterclaim for divorce upon the ground of adultery. He was ordered to give an additional bill of particulars. He failed to comply with this order and amended his answer by omitting the counterclaim and asserting the same allegations merely as an affirmative defense. If the plaintiff should be unsuccessful upon the trial of this issue at Special Term, the judgment against her would be res adjudicata in any action which the defendant might subsequently bring for affirmative relief. If the affirmative relief had in the first instance been sought, the plaintiff would be entitled to a jury trial as a matter of right. She should not be deprived of this right merely because the defendant is seeking to accomplish the same result by indirection.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dowling, P. J., Mereell, Finch and McAvoy, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.  