136 Misc. 377 | N.Y. Sup. Ct. | 1930
Action to annul a marriage on the ground of defendant’s physical incapacity. Defendant appeared and answered. The answer was subsequently withdrawn by leave of the court, and plaintiff permitted to proceed with this action as an undefended annulment action.
It appears the parties were married September 17, 1922. This action was not commenced until February 19, 1929, or more than five years after the marriage. Section 1141 of the Civil Practice
Section 1141 of the Civil Practice Act is identical with section 1752 of the Code of Civil Procedure. In Kaiser v. Kaiser (16 Hun, 602, decided in 1879), and which was an undefended action for annulment on the ground of physical incapacity, it was held: “ Section 33 of 2 Revised Statutes, 133, providing that a suit to annul a marriage, on the ground of physical in competency, ‘ shall in all cases be brought within two years from the solemnization of the marriage,’ is a statute of limitation, and the action is not barred by the lapse of that time, unless that objection is set up in the answer.” This conclusion was reached by Judges Beady and Ingalls, a majority of the court, notwithstanding a vigorous dissenting opinion by Noah Davis, P. J., who said: “ The statute on which the court below refused the decree in this case is not a mere statute of limitations. It enters into and is a substantive part of the right or cause of action, and the party seeking the relief for which it provides, must affirmatively establish, before the decree of divorce can be granted, that the action was brought within the two years specified by the statute. The action is the creature of statute. No such action existed at common law, and it is made a condition of the right to maintain the action, that it should be brought within a prescribed time. When it appears affirmatively that the suit was not commenced within the prescribed time, the court has no jurisdiction to pronounce a decree dissolving the marriage relation. This has always been the construction given to the statute by the * * * Court of Chancery and of this court, and by the decisions. A similar rule prevails as to actions for divorce for adultery. The statute is based upon grounds and reasons in no sense analogous to those on which ordinary limitations rest.”
Report and findings signed and filed accordingly.