195 A.D. 531 | N.Y. App. Div. | 1921
Lead Opinion
This is an appeal from a judgment sustaining a demurrer to a complaint. The complaint is very brief. It alleges that the parties to the action were married on the 11th day of November, 1914; that at the time of the marriage the defendant was a lunatic; that defendant has continued ever since to be insane; that she is now confined in a State hospital for the insane; that the parties have not lived together since the 18th of December, 1914; that there were no issue of the marriage. It is not alleged that ■ the plaintiff was ignorant of the lunacy of the defendant at the time of the marriage, or that any fraud was practiced to conceal from him that fact. The simple question is presented: Can the sane party to a marriage contract maintain an action against his insane spouse to annul the marriage on the ground of insanity? The Code of Civil Procedure provides in section 1743 that an action to annul a marriage may be maintained on the ground of the non-age of a party, the invalidity of the marriage, the idiocy or lunacy of a party, the procurement of the marriage by force, duress or fraud, the physical incapacity of a party, or the relationship of the parties within prohibited degrees. It specifically provides that if infancy be the ground the action may be maintained only on behalf of the infant. (§ 1744.) It specifically provides that either party may bring the action on the ground of the invalidity of the marriage. (§ 1745.) It fails to specify which party may sue in case of the- relationship of the parties within prohibited degrees. From this it may be assumed that in such case an action will lie in favor of either party. As to the three remaining grounds for annulment it provides that an action will lie on behalf • of the idiot or lunatic, in favor of the defrauded or injured
The judgment should be affirmed.
All concur, Kilby, J., with a memorandum, in which Woodwaed, J., concurs.
Concurrence Opinion
This is an appeal from a judgment dismissing plaintiff’s complaint upon the ground that it does not state facts sufficient to constitute a cause of action. Mr. Justice H. T. Kellogg writes sustaining the judgment. I concur in the result, but find ground for my exception in the following rule laid down in the opinion, viz.: “Accordingly, we hold that a sane party to a marriage with an insane party may not bring suit to avoid it on the ground of insanity.” In the abstract this is correct; that is, the insanity alone does not furnish ground for a cause of action, but to hold or seem to hold that any sane party may not, under any circumstance, maintain an action for annulment of marriage against an insane party does not seem to me tenable. Section 10 of the Domestic Relations Law defines marriage as a civil contract. Section 7 of the Domestic Relations Law provides that “ Actions to
Concurrence Opinion
concurs.
Judgment affirmed, with costs.