Deitch v. Deitch — 161 A.D. 492

Majority

p. 492

Ida Deitch, Appellant, v. Philip Deitch, Respondent.

Second Department,

March 13, 1914.

Headnote

Husband and wife—annulment of marriage on ground of physical incapacity — pleadings — amendment — Statute of Limitations — review of discretion of Special Term in allowing amendment of pleadings.

An order at the Special Term permitting the defendant in an action for the annulment of a marriage on the ground of physical incapacity to amend his answer by alleging that the plaintiff did. not commence the action within five years from the time of the marriage of the parties, affirmed.

p. 493

The discretion of the Special Term to amend pleadings in matrimonial actions, and especially in imposing or withholding costs, will not ordinarily he reviewed on appeal.

Appeal by the plaintiff, Ida Deitch, from, an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of January, 1913, permitting the defendant to amend his answer and to set up as a defense that the plaintiff did not commence this action within five years from the time of the marriage of the parties.

Abraham P. Wilkes [Henry Kuntz with him on the brief], for the appellant.

Simon Berg, for the respondent.

The limitation to sue within five years for annulment of marriage on the ground of physical incapacity (Code Civ. Proc. § 1752) extends the original two-year limitation for such proceedings. (R. S. pt. 2, chap. 8, tit. 1, § 33; 2 R. S. 143, § 33.) This statutory limitation is part of our public policy. It declares a rule of the ecclesiastical courts, that the injured party cannot unreasonably delay proceedings for relief without being open to the charge of want of sincerity and promptitude, (M. [falsely called C.] v. C., L. R. 2 P. & D. 414, 419; sub nom. Mansfield v. Cuno, 29 L. T. Rep. [N. S.] 316.)

Divorces for alleged impotency early led to abuse and fraud. (Amram, Jewish Law of Divorce, p. 65; Bish. Mar., Div. & Sep. §§ 1272, 1273.) Hence the limit on the time to avoid a marriage rests upon a basis quite different from the periods to begin other civil suits. McNair v. McNair ( 140 App. Div. 226 ) and Kaiser v. Kaiser ( 16 Hun, 602 ) were hearings on the husband’s default. Both were simple suits for annulment. Where plaintiff subjoins a cause of action for misrepresentation, as here, the plaintiff, even without the formal defense of the Statute of Limitations, might have to account for her eight years of continued cohabitation.

The discretion of the Special Term to amend, in furtherance of justice, in matrimonial actions, especially in imposing or

p. 494

withholding costs as terms for allowing such amendments, will not ordinarily he reviewed on appeal.

The order appealed from is affirmed, without costs.

Jenks, P. J., Burr, Thomas, Oarr and Putnam,' JJ., concurred.

Order affirmed, without costs.

Cases cited

McNair v. McNair 140 App. Div. 226 N.Y. App. Div. 1910-10-20 p. 493