1. On a motion to dismiss in limine a petition which sets out a cause of action for divorce from the bond of matrimony the court can consider only the allegations contained in the petition, all of which, for the purpose of the motion, when well pleaded, must be regarded as true.
2. Matters extrinsic the petition urged in support of defendant's motion to dismiss same may be resorted to only when appropriately set up by answer to the petition, and the sufficiency thereof as a defense may be determined only on final hearing of the cause.
FALLON, V.C.
This matter is now before the court on defendant's motion to dismiss in limine the petitioner's petition which sets out a cause of action for divorce from the bond of matrimony. The motion to dismiss is equivalent to a demurrer under the old practice, when demurrers were pleadable, and on the argument of such motion nothing can be considered by the court except the allegations contained in the petition. The solicitor for the defendant, in support of his motion, has urged matters extrinsic the petition, but such cannot be considered by the court in the matter sub judice. For the purpose of the motion all of the allegations contained in the petition, which are well pleaded, must be regarded as true. There is nothing contained in the petition herein which would warrant the court to grant defendant's motion to dismiss same in limine. The matters urged in argument by the solicitor for the defendant in support of the motion to dismiss the petition, and which are particularly set forth in defendant's notice of motion therefor, filed herein, may be resorted to only by way of defense when appropriately set up by answer to the petition, and the sufficiency thereof as a defense may be determined only on final hearing of the cause.
I will advise an order dismissing the defendant's motion to dismiss the petition.