Erlanger v. Erlanger, Appeals Nos. 1 and 2

Appeals Nos. 1 and 2 | N.Y. App. Div. | Jun 9, 1916

Stapleton, J.:

The plaintiff, alleging his marriage to another woman now living, which marriage has not been annulled or dissolved, and a subsequent ceremonial marriage with the defendant, brings this action to annul his marriage with the defendant. The defendant in her answer denies any knowledge or information sufficient to form a belief of the fact of the former marriage. She specially pleads that two children were born as the issue of the subsequent marriage, and that she was without any knowledge of the former marriage at the time the ceremony between her and the plaintiff was performed. She demands general relief. She moved for alimony pendente lite and for counsel fee. From the order granting the motion an appeal is taken. Plaintiff thereafter moved to discontinue his action, and from the order denying that mption an appeal is taken. We are considering both appeals in this opinion.

Even though the prior marriage were proved the defendant would be entitled to have the complaint dismissed on the merits should this court accept Berry v. Berry (130 A.D. 53" court="N.Y. App. Div." date_filed="1909-01-08" href="https://app.midpage.ai/document/berry-v-berry-5210011?utm_source=webapp" opinion_id="5210011">130 App. Div. 53) as an authority. The effect of that decision as an authority has been limited in Brown v. Brown (153 A.D. 645" court="N.Y. App. Div." date_filed="1912-12-06" href="https://app.midpage.ai/document/brown-v-brown-5226357?utm_source=webapp" opinion_id="5226357">153 App. Div. 645, 650); and if it were necessary we should be inclined to examine the decision in the light of Stokes v. Stokes (198 N.Y. 301" court="NY" date_filed="1910-04-26" href="https://app.midpage.ai/document/stokes-v--stokes-3576537?utm_source=webapp" opinion_id="3576537">198 N. Y. 301). (See, also, Walter v. Walter, 217 N.Y. 439" court="NY" date_filed="1916-03-14" href="https://app.midpage.ai/document/walter-v--walter-3595191?utm_source=webapp" opinion_id="3595191">217 N. Y. 439.) We deem it unnecessary, however, because in the case at bar children are involved.

We think it is clear, from the issue raised by her answer, that the defendant is entitled to have the status of the plaintiff, as to his competency to contract the marriage with her, established. If it be established that he was incompetent to contract she is also entitled to the relief prescribed by section 1745 of the Code of Civil Procedure. It was, therefore, proper for the court to award her alimony and counsel fee. (Higgins v. Sharp, 164 N.Y. 4" court="NY" date_filed="1900-10-02" href="https://app.midpage.ai/document/higgins-v--sharp-3576384?utm_source=webapp" opinion_id="3576384">164 N. Y. 4.) It was proper for the court to deny the plaintiff’s motion to discontinue the action. (Winans v. Winans, 124 N.Y. 140" court="NY" date_filed="1891-01-14" href="https://app.midpage.ai/document/winans-v--winans-3623256?utm_source=webapp" opinion_id="3623256">124 N. Y. 140.)

The orders appealed from should be affirmed, with ten dollars costs and disbursements in each case.

Jenks, P. J., Carr, Rich and Putnam, JJ., concurred.

Orders affirmed, with ten dollars costs and disbursements in each case.