Clark v. Clark

Headnote

Limited diwree — defense that plaintiff's former husband is still lining — what sufficient allegation of.

In an action for a limited divorce the defendant, besides denying the complaint, set up as a separate défense that at the time of her alleged marriage with him, “ the plaintiff was a married woman, the wife of one Clement Clark then living, from whom she had never been divorced, but whose lawful wife she then was, which facts were unknown to the defendant,” etc. The plaintiff demurred^ to

tlae second defense, claiming that the answer did not affirmatively aver that the former husband had not been finally sentenced to imprisonment for life, citing LindenY. Linden { 36 Barb., 61 ) and Kinnier v. Kinnieo' ( 45 N. Y., 535 ). The court (citing Fleming v. The People, 27 ÜST. Y., 329, and Hayes v. People, 3 Park. Crim., 325), held, that it was not necessary to negative the exceptions contained in the statute, and that, furthermore, the answer alleged that the plaintiff at the time of the marriage stood in a valid marital relation to another; that plaintiff could not be the lawful wife of Clement Clark if she had the legal right to marry another man.

Appeal from an order sustaining a demurrer to tbe defendant’s answer, in an action for a limited divorce.