The complaint alleges the marriage of the plaintiff and the defendant, and for a first cause of action alleges that the defendant committed adultery in the city of Cleveland, O., with a woman whose name is unknown to the plaintiff, and also committed a similar offense in the city of Hew York. For a second cause of action the complaint alleges that the'defendant willfully abandoned and deserted the plaintiff and for four years has failed and neglected to provide for her support and maintenance, and that between the 16th of August, 1888, and December, 1901, the defendant had treated the plaintiff in a cruel and inhuman manner. And the complaint demands judgment against the defendant dissolving the marriage or in the alternative separating the plaintiff from the bed and board of the defendant. The ground of the demurrer which has been sustained by the court below is that it is improper to unite in the same com*790plaint a cause of action for an absolute divorce and a cause of action for a legal separation, ■
Section 484 of the Code of Civil Procedure provides for the causes of action which may be joined in the same complaint,- but there, is nothing in this section as I .read it which bears upon this question; That section provides generally that “ -the plaintiff may unite-in the same complaint two or mofe" causes of action whether they aré'such.as were formerly denominated legal or equitable or both where they are brought to recover as follows: ” and then follow twelve subdivisions none of which apply to an action for divorce or separation. The section then provides-: “It must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are. consistent with each other ;'andj except as -otherwise prescribed by law, that they affect all the parties" to the'"action ; and it must appear upon the face of the complaint ¡that they do not -require different places of trial.” This section is complied with except that these two- causes of action do not belong to any one of the subdivisions, of :the section. What .are termed matrimonial actions are provided for by title 1 of chapter 15-of the Code of Civil Procedure. By article 2 of .that title provision is made for an "action for divorce. Article 3 provides for an action .for a separation. Article 4 contains provisions applicable to two Or riiore of the actions specified in this title, and" section 1770 provides that where" an action is brought- by either a husband or wife as "prescribed in either of the last two articles a .cause of action against the plaintiff and in. favor Of the.defendant "arising under either of said articles may be interposed in'connection with a denial of material allega, tions of the complaint as a counterclaim. This last section was amended by chapter 703 of the" Laws of 1881, the"effect of which was to allow a counterclaim asking for an affirmative- judgment for a divorce or separation o'r both in an action, brought ,to obtain either . a divorce or "a separation!- ; Ho reason is apparent why a. defendant, should be allowed to unite in one answer asking for affirmative relief two causes of action,"one. for a divorce an.d one.a. separation which would prohibit the plaintiff from uniting in the complaint two causes of action to entitle him or her to the same relief to which the defendant would- be entitled by way of counterclaim. *791And there is nothing in the other provisions that are applicable to the actions for divorce or separation which as I can see bears at all upon the question.
In the case of Zorn v. Zorn (38 Hun, 67) the General Term of the Supreme Court in the fifth department held that these two causes of action could not be joined, but it seems to be. conceded that there is no, statutory provision which interferes with it, and the only ground stated is that the charges of adultery and cruel usage are not only distinct and unconnected charges, but they lead to separate and distinct issues, the mode of procedure is different, and it leads to confusion to connect them in the same cause of action. The learned judge there relied on the case of Johnson v. Johnson (6 Johns. Ch. 163) where the chancellor held that the charges were inconsistent in respect to the mode of procedure and that it leads to confusion to connect them together in the sanie bill. The decision seems to be based upon the anxiety of the 'court to prevent confusion and to preserve some analogy to the simplicity of declarations at common law. All of this has been entirely overthrown by our modern system of pleading. In Doe v. Roe (23 Hun, 19), decided by the General Terra in the third department, the presiding justice in delivering the opinion of the court mentioned the case of Smith v. Smith (4 Paige, 92) and the other cases which had held that an action for divorce on the ground of adultery could not be united with an action for a separation on the ground of cruel treatment, and said : “ This is not the law of the English courts. (Hughes v. Hughes, Law Rep. 1 Prob. & Div. 219.) Whether it should now be the law here we need not decide. The reasons given by the chancellor are not all applicable at this day.”
The rule as thus established was one solely of convenience. It is not based upon any principle or any provision of the Code of Civil Procedure, as it is quite clear that these two causes of action are not inconsistent within section 484 of the Code of Civil Procedure. They, are both matrimonial actions, and while it is true that they are based upon separate facts the cause for each cause of action may both exist at the saíne time. The mode of trial is the same except that an issue of adultery must be tried if either party demand it by a jury, but if a jury trial is demanded the single issue is sent to be tried by a jury and thé facts alleged in relation to the charge *792of adultery determined, the case must go hack to the Special Term for judgment. Under our present system of pleading and trial it is not apparent how allowing a plaintiff to unite in one action these two causes of action can result-in confusion or any real embarrassment. .That it was the intention of the Legislature that all the controversies between the parties to a matrimonial action should be settled in one action is apparent from the' amendment by chapter 703 of the Laws of 1881 to section 1770 of the Code of Civil Procedure, so that the court could have before it evidence of the entire relations between the parties that would enable it to make such .judgment as justice required. In Zorn v. Zorn (supra) the attention of-the court was not called tó the change introduced in the practice by section 1770 of the Code of Civil Procedui’e as that section is not mentioned in the opinion. And while I should refuse to follow an adjudication of the learned court that'decided Zorn v. Zorn {supra) with great reluctance upon any question of substantive-law,. I think upon, a question of'this kind which merely followed decisions of the old Court of Chancery which were based upon rules of pleading that were then in force but -which have been entirely abrogated, it should not be followed. ■ To follow this decision under the practice that has grown up under section 1770 of the Code of Civil Procedure would seem to me to place the plaintiff in such a matrimonial action at á distinct disadvantage as against the defendant. - The plaintiff,. though the injured party, should be allowed to have the same-advantages that the defendant has. There is no possible advantage in compelling a plaintiff, where the defendant has been guilty of acts which justify the .inference of adultery as well as abandonment or cruelty,, to bring her action upon one or the other of these charges, so that, if for. any reason she is unable to prove the one that she elects, to proceéd under, she will be forced to begin another action for relief upon the other ground. The cases are both tried before the court without a jury, except in relation'to the charge of-adultery, and, as before stated, if either party -desires a jury trial as to that charge, the issues can be framed, and that charge tried dis- , tinct from the others, and the court then, with all the evidence before it, is in a much better position to grant the decree to which either party is entitled than where these, causes of action are tried separately and in separate actions. I think, therefore, that in view *793of the. modern practice in relation to ■ the trial of actions^ and the evident intent of the Legislature in'amending section 1770 of the Code of Civil Procedure, the reason for the- rule is now obsolete, and it should be changed. - •
I think that the judgment appealed from should be reversed.
Judgment affirmed, with costs, with leave to plaintiff to amend on payment of costs.