
    LEVEY v. LEVEY.
    (Supreme Court, Special Term, New York County.
    June, 1914.)
    Divorce (§ 101*) — Separation — Counterclaim — Annulment — Grounds —Physical Incapacity—Statutes.
    Code Civ. Proc. § 1770, authorizing counterclaims in matrimonial actions, confines the right of counterclaim to a counterclaim for a divorce or a separation; and hence, in an action by a wife for separation, a defendant may not interpose a counterclaim to annul the marriage on the ground of his own physical incapacity.
    [Ed. Note.—For other cases, see Divorce, Cent Dig. §§ 322-327; Dec. Dig. § 101.*]
    Action by Warrena Dodge Levey against Clarence D. Levey. On demurrer to counterclaim.
    Sustained.
    
      Francis P. Burns, of New York City, for plaintiff.
    Abraham C. Cohen, of New York City, for defendant.
   GIEGERICH, J.

The defendant in an action for a separation has interposed a counterclaim to annul his marriage to the plaintiff on the ground of his own physical incapacity. Such a counterclaim cannot be asserted. Section 1770 of the Code of Civil Procedure, relative to counterclaims in matrimonial actions, confines the right of counterclaim to counterclaims for a divorce or a separation, and by implication excludes a counterclaim- to annul a marriage. Durham v. Durham, 99 App. Div. 450, 91 N. Y. Supp. 295; Taylor v. Taylor, 25 Misc. Rep. 568, 55 N. Y. Supp. 1052.

Demurrer sustained, with costs.  