Anonymous — 15 Abb. Pr. 311

Majority

p. 311

ANONYMOUS.

[No. 3 of this Title.]

Supreme Court, Third Department;

General Term, 1873.

Headnote

Divorce.—Pleading.—Material Allegations.

In a husband’s action for divorce, on the ground that he had a former ' wife, who was still living at the time he married defendant, and at the time of the commencment of the action,—an allegation in the answer, that plaintiff had, before marrying defendant, procured a decree of court adjudging him at liberty to rgarry, and that defendant had thereupon in good faith married him, being induced by his fraud to believe that he was at liberty to marry,—is immaterial.

An allegation in the answer, that defendant has no knowledge or information sufficient to form a belief as to whether the first wife was living at the commencement of the action, is a denial of a material allegation.

An allegation in the complaint, charging defendant with a knowledge of the prior marriage at the time of her marriage with plaintiff, is material upon the question of costs, and perhaps on that of the legitimacy of the children, and of alimony ; and since an omission to deny it would admit it, it may properly be denied in the answer.

The plaintiff in the action last reported, brought another action against his third wife, Constance, for a divorce from her on the same ground as those he relied on formerly in his action of divorce against his second wife, Caroline, which is above reported.

The allegation of the complaint were as follows :

The above named plaintiff avers, that on or about April 23, 1839, in the parish of Handsworth, in the counter of of Stafford in England, plaintiff and one Susannah B-were duly and legally married, and lived together as husband and wife for a period of

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about one year, when plaintiff left England, and came to the United States of America, and has ever since been an inhabitant thereof. Said Susannah remained in England, and, at the time of the marriage between defendant and plaintiff, hereinafter. mentioned, was living, and plaintiff avers, on information and belief,, that she is still living, and said marriage between said Susannah and plaintiff remained and was in full force and effect at the time of said marriage between defendant and plaintiff as hereinafter stated.

On or about the first day of .July, in the year 1865, plaintiff and defendant were married in the city, county, and State of New York, and lived together as husband and wife until the month of July, in the year 1871, and had issue of said marriage, to wit: L-M-, who is now between five and six years of age, and N-, who is now between two and three years of age, and both of whom still survive. . Plaintiff further avers, that at the time of said marriage between plaintiff and defendant, both defendant and plaintiff were, ever since have been, and still are, inhabitants of the State of New York.

Plaintiff further avers, that at the time of the last mentioned marriage, plaintiff had not seen said Susan-nah, nor heard from her for a long time, and supposed she was deceased ; but since said marriage between plaintiff and defendant, it has been ascertained, proved and established, in certain judicial proceedings to which plaintiff and defendant were parties, that said Susannah was living at the time of said marriage between this plaintiff and defendant, and since it has been so ascertained, plaintiff and defendant have not lived together. Plaintiff further avers, that before and at the time of said marriage with defendant, she was informed and knew of said prior marriage between plaintiff and said Susannah.

Plaintiff is desirous of having said marriage between

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defendant and plaintiff dissolved and declared void, and hereby applies for and demands judgment that the said marriage between plaintiff and defendant be dissolved and declared void, according to the statute in such case made and provided, and that said L-and N-, be declared legitimate, and entitled to succeed to personal and real estate the same as though born in lawful wedlock; and also that plaintiff may have such further other and different relief in the premises as shall be equitable, and the circumstances of the case require.

The defendant (the third wife) answered the complaint as follows:

First. She admits that in the year 1839, in the parish - of Handsworth, in the county of Stafford, in England, in the kingdom of Great Britain, the plaintiff and one Susanna B-, were duly married, and lived together as husband and wife at Birmingham for a period of about one year, when the plaintiff abandoned his said wife, left England, and has never since been an inhabitant thereof.

Second. She avers that that the said Susannah continued to reside at Birmingham, aforesaid, until the year 1843.

That in the month of May, in that year, a certain. agreement in writing was duly entered into by and between the plaintiff and his said wife, and one SG-, by the terms and conditions of which agreement it was stipulated that the plaintiff and his said wife should thenceforth live separate and apart from each other, to all intents and purposes as though they were sole and unmarried, each without hindrance, interferance, or molestation by or from the other, and by which it was further agreed on the part of said SG- that he should indemnify the said plaintiff against certain acts of the said Susannah.

Third. That shortly after the execution and delivery

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of said agreement and articles of separation,, and in the month of September, 1843, the said Susannah intermarried with the aforesaid S- G-, at Birmingham, aforesaid, and immediately thereafter the said Susannah and the said S-G-cohabited together as husband and wife, left Birmingham aforesaid, ■ for parts unknown, and from that time, in the year 1843,' until the summer of 1872, a period of twenty-nine years, were not known or heard of by the plaintiff, and the said Susannah was supposed to be long since dead at the time of this defendant’s marriage with the plaintiff, as hereinafter set forth.

Fourth. This defendant has no knowledge or information sufficient to form a belief as to whether the said Susannah was living at the commencment of this action.

Fifth. That in the month of October, .in the year 1843, the above named plaintiff intermarried with one Caroline-, in the city of Brooklyn, county of Kings, New York, and thereafter, and until on or about the year 1863, a period of twenty years, the plaintiff and the said Caroline cohabited together as husband and wife.

Sixth. That in the month of November, in said last named year, 1863, the said plaintiff commenced an action of divorce against his said wife Caroline, in this court, and such proceedings were had in said action that, on the seventh day of March, 1864, a judgment was rendered by this court, and on said day was duly entered in said action, by the terms of which judgment the said marriage contracted by and between the plaintiff and the said Caroline, on October 21, 1843, was adjudged and decreed to be null and void, and was thereby dissolved, and by which it was further adjudged and decreed that each of the parties to said action, to wit, the said-plaintiff and the said Caroline, were, and should be henceforth at liberty to marry again, as though said marriage between them had never been

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had. That a copy of said judgment is hereto annexed, marked schedule A, and forms a part of this answer.

Seventh. That thereafter the plaintiff proposed to this defendant to contract marriage with her, and in order to induce her to consent thereto, and to convince her of his right to contract such proposed marriage on his part, the said plaintiff exhibited to this defendant the said judgment of this court, and read to her such portion thereof as adjudged and decreed the dissolution of the plaintiff’s former marriage, and granted liberty to the plaintiff to marry again, as though such former marriage so dissolved had never been had, and the plaintiff then and there, and frequently thereafter, represented to this defendant that he had the legal right under such judgment to marry this defendant.

That this defendant consulted her friends and relations, as well as legal counsel, as tó such proposal of the plaintiff, and as to the right of the plaintiff to contract lawful marriage with her under the terms of said judgment and decree of this court, and this defendant being so advised by counsel, and relying upon said judgment and the representations of plaintiff, was induced to believe, and did believe, that the said plaintiff had legal right to contract marriage with her, and trusting to and relying upon the permission given by this court in and by said judgment and decree, and the representation of the plaintiff, the defendant consented to contract marriage with the plaintiff, and accordingly on or about the first day of July, 1865, the plaintiff and the defendant were married, as alleged in the complaint, and from that day until on or about the month of October, 1871, they cohabited together as husband and wife, when in the month last mentioned the plaintiff expelled the defendant from his house.

Eighth. The defendant denies that before and at the time of her said marriage with the plaintiff, she was informed, or knew, or had reason to believe of the

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former marriage between plaintiff and his first wife, the said Susannah B-, or the grounds upon which said judgment of divorce was founded.

Ninth. The defendant further alleges that her said-marriage with the plaintiff was contracted in good faith, and without any knowledge or information or suspicion of any legal impediment thereto, and in implicit confidence and reliance upon the permission granted by the judgment aforesaid and upon the representations of the plaintiff.

Wherefore the defendant demands judgment that the complaint be dismissed, or that in case such marriage should be dissolved, that suitable provision be made by the judgment of this court for her support and maintenance, and the support, maintenance and education of her children by the plaintiff, and to that end she humbly submits her rights in the premises to the judgment of the court.

The court at special term, upon motion, struck out all the second subdivision of said answer after the figures “1843” in the third line thereof; and all of the third subdivision down to the word “ unknown,” in the eighth thereof; and all the fourth, fifth, sixth, seventh, and eighth subdivisions of the answer. The defendant appealed from the order.

John L. Hill, for appellant.

Stephen Brown, for respondent.

There can be no question that most, if not all of the matters stricken out of the defendant’s' answer were immaterial in an . action by the plaintiff for divorce based upon the provision of the statute, that the plaintiff had.another and a former wife living at the time of his marriage to the

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defendant; and though such marriages are void (2 Rev. Stat., 139, § 5, subd. 2), yet it would seem that the party who has knowingly entered into such second marriage cannot relieve himself from his civil liabilities under such second marriage until legally relieved, by a decree of the court upon application made therefor (2 Rev. Stat., 142, § 22 ;1 Id. 5 ed., vol. 3, p. 233, § 33).

The complaint, it will be seen, avers a marriage between plaintiff and one Susannah B-, in England, in 1839; that he (plaintiff) left her in England about one year thereafter; and in July, 1865, married the defendant in the city of New York; that he continued to . live with her from then until July, 1871, and had issue by her, two children, who now survive. These are all the material facts necessary for the plaintiff to prove, except also, that his first wife is still living, and that the said marriage with her remained in full force at the time of his marriage with the defendant, and also, for certain purposes, that she was living at the commencement of the action (2 Rev. Stat., 142, § 22). It is the fair construction of the complaint, that the plaintiff absented himself from his former wife, from the year 1840, until his marriage with the defendant, but there is no written allegation, nor inference, that she absented herself from him. Proper matters for defense in such an action, are, that the former wife was not living at the time of the marriage to the defendant; that she was not living at the time of the commencement of the action, and also, all matters relating to the question of the legitimizing of the children; and questions affecting the costs of the action, and perhaps, also the question of alimony, are proper to be set up in the answer.

In this view, I think the matter set up in the fourth subdivision of the answer, and stricken out, ‘ ‘ that the defendant has no knowledge or information sufficient to form a belief whether the said Susannah was living

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at the commencement of this action,” was a material allegation in order to join issue upon the statement in the plaintiff’s complaint, that she is still living. This allegation should not have been stricken out.

So, too, I think, that so much of the eighth subdivision of the defendant’s answer stricken out, as is in the following words: “ The defendant denies that before and at the time of the said marriage with the plaintiff, she was informed, or knew, or had reason to believe of the former marriage between the plaintiff and his first wife, the said Susannah B-was material as an answer to the allegation in the complaint, that before and at the time of said marriage with defendant, she was informed and knew of said first marriage between plaintiff and said Susannah.” Though the fact of knowledge might not be a perfect defense, the • omission to deny the charge would be an omission of a fact very material upon the question of costs, and perhaps of the legitimacy of the children and of alimony. If it was material to charge this knowledge upon the defendant, it was equally material for her to deny it if not true. It does not well become the plaintiff to object to her denial of a fact which he relies upon as sufficiently material against her to charge in the com. plaint. The other matters struck out at special term, do not seem to be material to the issues to be-tried.

The order of the special term should be modified, as above suggested, without costs to either party on .the appeal.

Footnotes

[1] Present, Miller, Potter and Parker, JJ.