#### Mary E. Evans, Plaintiff, *v.*William C. Evans, Defendant.

(Supreme Court, Kings Special Term,

March, 1899.)

Absolute divorce — Practice, on, default, under rule *72*of the General Rules of Practice.

If the verified complaint in an action for an absolute divorce avers the facts enumerated in rule 72 of the General Rules of Practice, *i. e.,*that the adultery was committed without the consent, etc., of - the plaintiff; that five years have not elapsed since he discovered it or the adulterous intercourse, and that he has not since voluntarily cohabited -with the defendant, the plaintiff need not and shoulii not, on default, show these facts. If -they are not averred in the complaint, then they should be shown by an affidavit.

Rule 72 of thé General Rules of Practice applies only to cases of default, and the things stated in it are not a part of the plaintiff’s ease but are matters of defense which the plaintiff is permitted to aver in' - the complaint in anticipation of a default. ■

Action for absolute divorce. Application to the court for judgment on default.

F. H. Renman for plaintiff.

Gaynor, J.:

The time of the court is so much wasted on the hearing of these defaults in actions for absolute divorce, by the unnecessary introduction of evidence on certain points, that something needs to be said about the practice. Eule *72*of,the General Eules of Practice provides that “ unless it be averred in the complaint” (1) that the adultery was committed without the consent, connivance, privity or procurement of the plaintiff, (2) that five years have not elapsed since the plaintiff discovered the adultery, (-3) or where the defendant is living in adulterous intercourse that five years have not elapsed since the plaintiff discovered such inter*11course, (4) that the plaintiff has not voluntarily cohabited with the defendant since such discovery; and. *“*the complaint containing such averments be verified by the oath of plaintiff ”, the judgment shall not be rendered for the plaintiff “ until the plaintiff’s affidavit be produced stating the above facts.” Thus, under the rule, if these things he not alleged in a verified complaint, the way to do is to present an affidavit of them. In some way, however, it has come about that attorneys persist in introducing oral testimony, of them; and that even though the verified complaint alleges them. Some attorneys even insist on asking the formal question whether five years have elapsed since the plaintiff discovered the adultery, when the allegation and the proof are that it was committed on a named date within the five years, or even within a few weeks or months. There seems to be a general notion that the things mentioned in Rule 72 are for the plaintiff to allege and prove as part of the cause of action, whereas they are no part of the cause of action, but defenses to be pleaded by the defendant. Rule 72 was made for cases of default only; and it is in effect that in anticipation of a default the plaintiff may aver the said things in a verified complaint, in lieu of presenting a separate affidavit of their truth. There is no rule for oral proof of them, and if the bar would conform to the rule it would be appreciated by the court, for the profession is a learned one.

Judgment for the plaintiff.