169 A.D. 790 | N.Y. App. Div. | 1916
This is an action for separation, and the defense to which the demurrer was interposed pleads facts showing that the defendant was induced to contract the marriage by fraudulent representations, with respect to matters material thereto, made by plaintiff. The demurrer is upon the ground that the defense is insufficient in law. The point presented by the appeal is whether a cause of action for the annulment of a marriage may be pleaded as a defense to an action for separation predicated on the validity of the marriage.
The court at Special Term held that such a cause of action may not be pleaded by the defendant as a defense, and cited our decision in Gould v. Gould (125 App. Div. 375) 'as authority therefor. The decision on that appeal did not involve the point now presented. That was an appeal- from an order denying the plaintiff’s- motion' to vacate an order for the examination of a witness before trial in an action for separation. The answer had not been interposed, and it was stated
The learned counsel for the appellant contends that the point now presented was decided by this court in Durham v. Durham (supra). It is true that Mr. Justice Hatch, writing
We are of opinion, therefore, that facts constituting a cause of action for the annulment of the marriage do not constitute a defense to an action for a separation, and without intending to express any opinion with respect to the effect of. a judgment for the plaintiff in the separation action on an action subsequently brought by the defendant for the annulment of the marriage based on facts known to him prior to the rendition of the judgment in the separation action, we affirm the interlocutory judgment appealed from, with costs.
Ingraham, P. J., Scott and Dowling, JJ., concurred; McLaughlin, J., dissented.
Judgment affirmed, with costs.