
    Halsted v. Halsted.
    (New York Common Pleas—Special Term,
    November, 1893.)
    Acts of adultery committed by the defendant in an action for divoreewitli the co-respondent named in the complaint, since the commencement of the action, cannot be charged by way of supplemental complaint.
    Motion by plaintiff for leave to serve a supplemental, complaint.
    
      George W. Carr, for plaintiff and motion.
    
      Edward B. Merrill, for defendant, opposed.
   Giegerich, J.

The plaintiff applies for leave to serve a supplemental complaint charging the defendant with the commission of additional acts of adultery with the co-respondent named in the complaint since the commencement of the action. While a complete determination of the rights of the parties in one action is desirable, I fail to see how the application can be granted without disregarding the rule, as laid down by the adjudications, that a new substantive cause of action upon which a judgment can be had without connecting it with the original complaint cannot be set up by supplemental complaint. Milner v. Milner, 2 Edw. Ch. 114; Morange v. Morange, 2 Law Bull. 30; Day v. Day, N. Y. Law Journal, Sept. 8, 1893, McAdam, J. The contention of plaintiff’s counsel, that this rule is questioned in Blanc v. Blanc, 67 Hun, 384, is not borne out by the decision in that case. On the contrary, the cases of Milner v. Milner, 2 Edw. Ch. 114, and Morange v. Morange, 2 Law Bull. 30, are cited as laying down the rule above stated, and the correctness of the . same is not thereby challenged. The action referred to was for a divorce on the ground of the adultery of the defendant. The answer alleged adulteries on the part of the plaintiff, which were set up as a defense and as a counterclaim, affirmative relief being demanded. The defendant applied for and obtained an order permitting her to plead adulteries alleged to have been committed by the plaintiff since the action was begun with women other than those mentioned in the original answer, which was affirmed upon appeal to the . General Term.

The distinction between the case of Blanc v. Blanc, 67 Hun, 384, and a case like the one before me, is pointed out by Judge McAdam, in Day v. Day, N. Y. Law Journal, Sept. 8, 1893, in the following language: “A plaintiff may discontinue and sue over again, while a defendant cannot.”

In recognition of the existing rule in this state, the motion must be denied, but without costs.

Motion- denied.  