| N.Y. App. Div. | Mar 13, 1914
The limitation to sue within five years for annulment of marriage on the ground of physical incapacity (Code Civ. Proc. § 1752) extends the original two-year limitation for such proceedings. (R. S. pt. 2, chap. 8, tit. 1, § 33; 2 R. S. 143, § 33.) This statutory limitation is part of our public policy. It declares a rule of the ecclesiastical courts, that the injured party cannot unreasonably delay proceedings for relief without being open to the charge of want of sincerity and promptitude, (M. [falsely called C.] v. C., L. R. 2 P. & D. 414, 419; sub nom. Mansfield v. Cuno, 29 L. T. Rep. [N. S.] 316.)
Divorces for alleged impotency early led to abuse and fraud. (Amram, Jewish Law of Divorce, p. 65; Bish. Mar., Div. & Sep. §§ 1272, 1273.) Hence the limit on the time to avoid a marriage rests upon a basis quite different from the periods to begin other civil suits. McNair v. McNair (140 A.D. 226" court="N.Y. App. Div." date_filed="1910-10-20" href="https://app.midpage.ai/document/mcnair-v-mcnair-5217143?utm_source=webapp" opinion_id="5217143">140 App. Div. 226) and Kaiser v. Kaiser (16 Hun, 602) were hearings on the husband’s default. Both were simple suits for annulment. Where plaintiff subjoins a cause of action for misrepresentation, as here, the plaintiff, even without the formal defense of the Statute of Limitations, might have to account for her eight years of continued cohabitation.
The discretion of the Special Term to amend, in furtherance of justice, in matrimonial actions, especially in imposing or
The order appealed from is affirmed, without costs.
Jenks, P. J., Burr, Thomas, Oarr and Putnam,' JJ., concurred.
Order affirmed, without costs.