| N.Y. App. Div. | Dec 18, 1944
Action for an annulment of marriage on the ground that, when the plaintiff married the defendant, defendant’s interlocutory judgment of divorce from her former husband had not yet become final. Judgment for the defendant unanimously affirmed, with costs. The clean hands maxim requires that the plaintiff be denied affirmative relief under the circumstances herein. In behalf of the defendant he financed and procured the judgment of divorce from her former husband. After the interlocutory judgment was entered and before it became final, with full knowledge of the facts, he induced the defendant to marry him for ulterior reasons relating to the Selective Training and Service Act, knowing that she was not free then to marry. The maxim requires that he who has done iniquity in respect of the subject matter of an action (here the marriage) may not have equity as a matter of affirmative exercise of power by a court of equity. (Kaufman v. Kaufman, in App. Div. 162; Krause v. Krause, 282 N.Y. 355" date_filed="1940-03-12" court="NY" case_name="Krause v. Krause">282 N. Y. 355; Keller v. Keller, 259 A.D. 852" date_filed="1940-04-29" court="N.Y. App. Div." case_name="Heller v. Heller">259 App. Div. 852, affd. on another ground, 285 N.Y. 572" date_filed="1941-02-27" court="NY" case_name="Heller v. Heller">285 N. Y. 572.) Cases invoked to the contrary may be distinguished on their facts. Present — Hagarty, Acting P. J., Carswell, Johnston, Adel and Aldrich, JJ.