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Schmitt v. Schmitt

New Jersey Superior Court, Chancery Division


Decided: August 31, 1950.

LOUIS SCHMITT, PLAINTIFF,
v.
CATHERINE SCHMITT, DEFENDANT

Hegarty, A.m.

Hegarty

[9 NJSuper Page 470] The question here involved is whether plaintiff may amend his complaint for divorce to set forth an act of adultery alleged to have occurred since the filing of the answer to the original complaint. Before the new Rules were adopted it appears that the proper procedure was to dismiss the original complaint and institute a new action. Smith v. Smith , 21 N.J. Misc. 273, and cases cited therein. However

[9 NJSuper Page 471]

the clear and broad language of Rule 3:84-4, "In any action for divorce, * * * an amendment to the complaint * * * may be allowed to set forth a cause of action which has arisen or become known since the filing of the original complaint," forces the conclusion that such an amendment may now be allowed. Such an interpretation seems in keeping with the progressive liberality of the Rules and, therefore, plaintiff's application to amend the complaint is granted.

Appropriate order may be presented after the same has been submitted to counsel for approval.

19500831


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