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Combs v. Combs

17 Abb. N. Cas. 265 Court N. Y. Supreme Court, Fourth District; Special Term, English

Delivered by Tappan, J.

Contents

Majority

p. 265
COMBS V. COMBS.
N. Y. Supreme Court, Fourth District; Special Term,
September, 1885.

Headnote

Void marriage ; Action to set aside after decease of party.
An action will not lio to set aside a void marriage after the decease of one of the parties.
The subject of divorce is exclusively regulated by statute, and actions relating thereto can only be maintained pursuant to statutory provisions.
Demurrer to complaint.
The complaint set forth that the plaintiff, Elizabeth Combs, in the year 1855, married one Moore, by whom she had several children, and that said Moore died in the year 1864, leaving the plaintiff his widow, and that said Moore was a soldier in the late war, and as such had a pension, which pension was subsequently awarded to the plaintiff as his widow. That in October, 1868, the plaintiff married one Combs, and that the pension I hen ceased, owing to her said marriage. That said Combs died in 1883 ; and that three children, the issue of the said last mentioned marriage, were made defendants. That on January 1, 1836, the said Combs had married one Deborah Kenyon (who was sued herein as Deborah Combs), and that at the time of plaintiff’s marriage with him, said Deborah was still his lawful wife. That plaintiff did not know of the former marriage until after said Combs’ decease.
The plaintiff prayed a &-• ove that her said marriage with said Combs might be declared void.
The defendant Deborah (Kenyon) Combs demurred to the complaint, upon the ground that the complaint did not state facts sufficient to constitute a'cause of action against her.
p. 266
Sidney F. Rawson, and S. H. Bevan, for the defendant, Deborah Combs.
James J. Mead and A. J. Cheritree, for the plaintiff.

—The complaint is defective. The demurrer must be sustained.

First. It is alleged that at the time plaintiff married Elisha L. Combs, he then had another wife living ; it does not appear that above named defendant was then his wife (3 R. S. [5th ed.] 227, § 4; Bishop on Mar. & Div. § 201).

Second. The power possessed by this court over the subject of divorce is given exclusively by statute ; it can exercise no other power (Peugnet v. Phelps, 48 Barb. 566 ; Palmer v. Palmer, 1 Paige, 276 ; Blott v. Rider, 47 How.Pr. 90 ; Sullivan v. Sullivan, 32 Hun, 453 ).

Third. Although the marriage between plaintiff and Elisha L. Combs was void, if he then had another wife living (3 R. S. [5 ed.] 227, § 4), yet the statute contemplates that an action may be maintained by the innocent party to the second marriage, to obtain a decree to that effect, and allows such action to be brought by such party to the void marriage during the life of the other, but not after (Code Civ. Pro. § 1745; Cropsey v. McKinney, 30 Barb. 47 , 55; Griffin v. Banks, 24 Hun, 213 ).

Demurrer sustained. Plaintiff may amend on payment of $35 costs in twenty days after notice of this decision ; if amendment not made and costs paid within that time, final judgment to be entered for said defendant, with costs of this action.

The plaintiff having failed to amend, final judgment was entered against her.

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