#### Minnie L. Weis, Appellant, *v.*Louis Weis, Respondent.

First Department,

January 10, 1908.

Husband and wife — divorce — recrimination — bill of particulars ordered — framing issues for jury.

A defendant in an action for divorce who alleges as a separate defense that the plaintiff at various times and places within and around the city of New York, not precisely known to the defendant, lived in adultery with a person named, should be compelled to give a hill of particulars as to the time and place at which such adultery was committed, even though the answer demands no affirmative relief.

Such countercharge of adultery is»too indefinite to warrant the issue to be framed for. trial by a jury prior to the service of a bill of particulars stating the time and place of the adultery alleged.

Appeal by the plaintiff, Minnie L. Weis, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 11th day of Movember, 1907, denying the plaintiff’s motion for a bill of particulars of the amended answer, and also from an order entered in said clerk’s office on the 11th day of Movember, 1907, framing issues for trial by a jury.

*Archibald Foote Clark, for*the appellant.

*Edwin T.*Taliaferro, for the respondent.

Ingraham, J.:

The action was for a divorce. The defendant’s answer admitted the marriage, denied the other allegations of the complaint, and alleged as a separate defense that during the months of *“*April, May, June, July and August of the year 1906, the plaintiff, at various times and places within and around the city Of Mew York, the precise times and places not being known to the defendant, committed adultery and lived in adultery with one Albert Edward Tower, who, without other consideration than such adulteries, supported and maintained the said plaintiff and advanced to her large sums of money and other things of value.” There is no demand for affirmative relief. The plaintiff' then moved to compel the defendant to serve a bill, of particulars specifying the times and *410particular, places at which the plaintiff committed' adultery and lived in adultery with said Tower, the particulars as to how said Tower supported and maintained the plaintiff, and the particular sums of money and other things of yalue advanced to the plaintiff hy said Tower.- This motion was denied. This allegation in the answer is indefinite and general. The defendant, to he justified in setting up such an answer to a charge of adultery against him, must have some knowledge as to the'time and place at which the said adultery was committed; and to that extent I think the order should have been granted. . .

The order denying the motion for a hill of particulars is, therefore, reversed and the defendant is required to serve a bill of particulars specifying the times and places at which he charges the plaintiff committed adultery.

The defendant also moved to frame issues for a trial before a jury. The court directed three issues as to the defendant’s adultery to be tried by a. jury; and also directed that the issue as to whether the plaintiff, during the months of April* Hay, June, July and August, 1906, át various times and places within and around the city of Eew York, committed adultery and lived with -one Albert E. Tower. '

I think this last issue is entirely too indefinite to submit to a jury, and the provision submitting that issue should, therefore, be stricken , from the order, with leave, however, to the defendant to renew the motion to frame an issue as to the plaintiff’s adultery after the service of a bill of particulars.

The result is that the order' denying the motion for a bill of'particulars should be reversed and the motion granted to the extent indicated, and that the order framing issues should be modified as ■ hereinbefore stated, and as so modified the order should be affirmed, with ten dollars costs and disbursements . of the appeal to the plaintiff. ' ,v

Patterson, P. J., Lattghlin, Clarke and Scott, JJ., concurred.

Order denying bill of particulars reversed anti motion granted to extent stated in opinion, and order framing issues modified as stated - in opinion, and as modified affirmed, with ten dollars costs and disbursements to plaintiff. Settle order on notice. ■