Julia Krauss, Appellant, v. Otto Krauss, Respondent

Julia Krauss, Appellant, v. Otto Krauss, Respondent. _Bill of particulars as to acts of adultery — when a statement of the exact dates will not be required. Where the complaint in an action for an absolute divorce names a co-respondent and specifies that the defendant committed adultery with her at a specified house in the city of New York, “ on various and numerous occasions in the month of December, 1900, and from January 1st, 1901, until about the middle of September, 1901,” and at another house “ repeatedly * * from about the middle of September, 1901, down to about the 1st of Decemb-r, 1901, ” and at a third designated house from the 1st to the 20th day of March, 1902, and upon a motion to require the plaintiff to serve a bill of particulars of the times at which the alleged adulterous acts were committed, the plaintiff submits an affidavit stating that she is unable to specify the exact dates of the different acts of adultery, the motion for the bill of particulars should be denied, especially where the plaintiff also states in her affidavit that she intends to establish her cause of action by circumstantial evidence showing a course of conduct between the defendant and the co-respondent from which the inference of criminal intimacy between them may be drawn. Appeal by the plaintiff, Julia Krauss, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 14th •day of May, 1902, granting the defendant’s motion for a bill of particulars. William P. Maloney, for the appellant. M. M. Beokhold, for the respondent. [MAJORITY — Laughlin, J. :] Laughlin, J. : The order requires the plaintiff to furnish a bill of particulars of the t/vmes at which the alleged acts of adxiltery were committed. The complaint names a co-respondent and charges that all of the acts of adultery were committed with her; and it specifies the places with definiteness. On the question of time it is alleged that the adultery was committed at No. 401 West One Hundred and Forty-ninth street in the city of New York “on various and numerous occasions in the month of December, 1900, and from January 1st, 1901, until about, the middle of September, 1901;” at Nos. 353 and 355 West One Hundred and Eighteenth street “ repeatedly * * * from about the middle of September, 1901, down to about the 1st of December, 1901;” and at No. 106 West One Hundred and Thirty-seventh street -from the 1st to the 20tli day of March, 1902. The answer puts in issue the allegations of adultery, and the defendant in his affidavit denies guilt, but he does not deny knowing the co-respondent or having visited her at the times and places, specified in the complaint, nor is her affidavit presented. The plaintiff presented an affidavit in opposition to the motion, showing that she is unable to give the exact dates of the different acts of adultery, and that she intends to establish her cause of action by circumstantial evidence showing a course of conduct between the defendant and the co-respondent from which the inference of their criminal intimacy may be drawn. A cause of action for divorce may be established by facts and circumstances showing inclination, opportunities and intimacy of relations from wdiich the inference may fairly be drawn that the-parties have committed adultery without ¡woof of the commission of the act at any specific time or place; and in such case the court is not warranted in confining the plaintiff’s evidence by a bill of particulars specifying times witli precision. (Mitchell v. Mitchell, 61 N. Y. 398 ; Ketcham v. Ketcham, 32 App. Div. 26.) Furthermore, the co-respondent having been named and the places having been specified, we think, in view of the plaintiff’s inability to specify the times with more particularity, that the bill of particulars should have been denied regardless of the fact that she expects to prove her cause of action by a chain of circumstances and course of conduct indicating guilt without proof of specific acts of adultery. (Ketcham v. Ketcham, supra. See, also, Carrié v. Davis, 41 App. Div. 520.) The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.