91 N.Y.S. 295 | N.Y. App. Div. | 1904
Lead Opinion
This action was brought to annul a marriage contract subsisting between the parties hereto upon the ground that the consent of the plaintiff was procured thereto by fraud and duress practiced upon him by the defendant. The answer admitted the marriage, denied the other material allegations of the complaint and further avers for a separate defense that an action for a separation was brought in the Supreme Court, Kings county, by the defendant herein against the plaintiff; that the plaintiff appeared therein and answered; that the cause of action which he has pleaded in the complaint had accrued at that time, but that he did not plead it either as a counterclaim or by way of defense ; that the said action resulted in a judgment in favor of the plaintiff therein, granting her a separation and directing him to pay alimony. The said judgment further decreed that the said Cora W. Durham was the lawful wife of the said Arthur Durham. Upon motion of the defendant the plaintiff was directed
We agree with the learned, court below that the plaintiff could not have pleaded the facts averred in his complaint by way of counterclaim to the separation action. In matrimonial actions jurisdiction is derived from the statute relating to such subject. There exists no common-law jurisdiction over the matter, and the court in administering the same can only exercise such jurisdiction as the statute confers, or such as is necessarily incidental to the exercise of the power conferred thereby. (Erkenbrach v. Erkenbrach, 96 N. Y. 456.) Section 1770 of the Code of Civil Procedure makes provision for a defense by way of counterclaim, but in its application it is limited to an action for a divorce a vinculo and a mensa et thoro. A defense by way of counterclaim upon facts which would authorize the annulment of a marriage is not provided for in the section and does not seem to be authorized by any other statute. That a counterclaim is not permissible as a pleading under such circumstances was held in Taylor v. Taylor (25 Misc. Rep. 566; afifd. by this court without opinion, 68 App. Div. 638). Such conclusion, however, does not meet the present situation. While the plaintiff herein could not have pleaded the matter by way of counterclaim, he was not deprived of pleading the matter in defense to the action of separation. The existence of a valid marriage lies at the foundation of the right to maintain matrimonial actions. The right to judgment in an action for separation is dependent upon facts showing a disregard of the obligation and duty which arise out of the marital obligation and can only attach when such relation exists. In the action of separation, therefore, the plaintiff was required to establish the existence of a valid marriage as a prerequisite to her right to a judgment compelling the fulfillment of the obligation and duty which flowed therefrom. If there was failure to establish
Tile order should, therefore, be affirmed and the motion denied, without costs to either party as against the other.
Yan Brunt, P. J., Patterson and Ingraham, JJ., concurred.
Concurrence Opinion
I concur in the result, but dissent from the views expressed in the prevailing opinion. An action for the annulment of a marriage proceeds upon the theory that a marriage valid in form and in effect until annulled took place. Unlike other contracts, fraud does not render this contract void or even voidable at the election of the party imposed upon, but only upon such election and the decree of the court. The action for a separation involved the fact of the marriage, but not the question as to whether facts existed which would justify the cancellation of the contract should the defendant elect to bring an action therefor. The facts might not have been known to him at the time, and if they were the statute gives him a definite time within which to make his election, which cannot be abridged by a suit against him for separation in the meantime. The defendant in the action for a separation should, if he then knew the facts and determined to elect to have the marriage annulled, have brought an action for the annulment of the marriage, and have stayed proceedings in the other pending the trial and decision thereof. That would ha-ve relieved the parties and the court of the perhaps unnecessary and fruitless burden of trying the action for a separation; but I am not prepared to say that he was obliged to take that course. If there was issue of the marriage he might refrain on that account from endeavoring to have the marriage annulled; and if such issue died before the expiration of the period for bringing an action to annul the marriage, he should not be barred from maintaining his action merely because in the meantime an action for a separation had been successfully maintained against him.
Order affirmed and motion denied, without costs.