Opinion
October 7, 1958
Order denying defendant husband's motion for leave to serve a supplemental answer is reversed in the exercise of discretion, and the motion granted, without costs. The proposed supplemental answer would add four alleged acts of adultery to defendant's counterclaim for divorce, which presently charges six other adulteries. Defendant's application was properly made under section 245 of the Civil Practice Act based as it was on the uncontroverted averment that acquisition of knowledge as to the alleged new acts of adultery followed service of the prior pleading. Courts must be liberal in permitting the service of amended and supplemental pleadings, particularly where no prejudice will result to the opposing litigant. Certainly in the instant case the time and effort of the court and the parties will be conserved by permitting the service of the supplemental answer and trying all of the issues in one suit rather than compelling a new, independent action. Under all of the circumstances, Special Term should have granted the motion. Settle order.
Concur — Rabin, J.P., M.M. Frank, Valente, McNally and Stevens, JJ.