Opinion
March 25, 1957
Arthur S. Aaron for defendant.
Simon B. Schwartz for plaintiff.
This is a motion by defendant to strike paragraph "Sixth" of the amended complaint on the ground that it fails to comply with the provisions of rule 280 of the Rules of Civil Practice, or, in the alternative, to compel plaintiff separately to state and number the causes of action alleged in the amended complaint as required by rule 90 of the Rules of Civil Practice. The suit is by the wife for a separation and is predicated on claims of abandonment (par. "Fourth"), inadequate support and cruel and inhuman conduct (par. "Sixth"). All of these paragraphs and others are included in a single cause of action.
The charge of cruelty relates to a general course of conduct in which plaintiff sets out the particular acts relied on and the approximate dates of the several occurrences. Although the exact dates are not furnished, the allegations sufficiently apprise defendant of the misconduct he will be called upon to meet at the trial and therefore the paragraph under attack substantially complies with rule 280 ( Earle v. Earle, 79 App. Div. 631). However, since plaintiff includes several different grounds for a matrimonial separation in the complaint, those causes of action should be separately stated and numbered ( Sklar v. Sklar, 249 App. Div. 198).
Accordingly, the motion to strike paragraph "Sixth" is denied; but the alternative branch of the motion, separately to state and number the respective causes of action, is granted with leave to plaintiff to serve a second amended complaint within 10 days after service of a copy of this order, with notice of entry.