
    Florence Hasse, Respondent, v. Anthony Hasse, Appellant.
    Second Department,
    March 8, 1912.
    Husband and wife — action for separation — failure to pay costs in former action — stay of proceedings on counterclaim.
    Where a husband was defeated in an action for absolute divorce and has failed to pay a judgment for costs, the wife in a subsequent action for separation is entitled to an order staying her husband’s counterclaim for an absolute divorce upon the ground of the adultery charged in the former action until he pays the costs in said action.
    The husband’s counterclaim only should be stayed, for he is entitled to defend the wife’s action.
    
      Appeal by the defendant, Anthony Hasse, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of October, 1911.
    
      Emanuel Klein, for the appellant.
    
      Leopold Blumberg [David Senft with him on the brief], for the respondent.
   Rich, J.:

In November, 1910, the defendant commenced an action against this plaintiff for an absolute divorce, upon the ground of adultery. The complaint in that action was subsequently dismissed and a judgment entered in favor of defendant for costs, which has never been paid. In September, 1911, this action was commenced for a limited divorce, the complaint alleging cruel and inhuman treatment and abandonment. The defendant answered denying all allegations of cruel or inhuman treatment and abandonment, and then, by way of counterclaim, alleges adultery by the plaintiff, and demands an absolute divorce. The adulteries alleged in this answer are the same charged in the complaint in the former action. The plaintiff' has procured an order staying the defendant from prosecuting his alleged counterclaim until payment of the costs of the former actions and the various motions. This appeal is from such order.

The appellant contends that the respondent, having brought him into court, cannot prevent his defending the action and availing himself of every defense that he may have. This is undoubtedly true, but the difficulty with defendant’s position is that he was not content to defend, but demands affirmative relief, based upon the subject-matter involved in the former action. He denies all of the allegations of plaintiff’s complaint. This is his defense, and the order does not undertake to limit his establishing the truth of these denials. If, as he contends, the plaintiff’s adultery is a complete defense to the cause of action, he should have been satisfied to plead it as a defense and not aver it as a counterclaim upon which he demands affirmative relief. Any action the defendant might have brought against-his wife, containing the same allegations as pleaded in the counterclaim, and demanding the same relief, would have been stayed until payment of the costs of the former action, and that is precisely the result of his present pleading. He cannot be permitted to accomplish indirectly that which he cannot accomplish directly. He may defend this action but he cannot have the affirmative relief of a judgment of absolute divorce because of the adulteries charged in the former action.

The order must be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Hirschberg, Burr and Woodward, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  