Summary
In Landsman v. Landsman (302 N.Y. 45) and Beaudoin v. Beaudoin (270 App. Div. 631), the plea of estoppel did not suffice as a defense to an action such as that at bar; nor will defenses based on cohabitation with knowledge of the facts (McCullen v. McCullen, 162 App. Div. 599) or perjury in a marriage application (De Santis v. De Santis, 20 Misc.2d 16) prevail as defenses to an action seeking to have a void marriage declared a nullity.
Summary of this case from Simms v. SimmsOpinion
Submitted October 5, 1950
Decided November 30, 1950
Appeal from the Supreme Court, Appellate Division, First Department, O'BRIEN, J.
Millard E. Theodore for appellant. William H. Yaeger for respondent.
The parties went through a marriage ceremony at a time when the defendant already had a husband. To be sure, she had previously obtained a decree annulling her earlier marriage but that decree had not yet become final when she tried to marry the plaintiff. On these facts, he here demanded a judgment that would declare his union with her to be a nullity.
In her answer herein, she charged him with having deceived her by false representations in respect of the effectiveness of her interlocutory decree. On that basis, she demanded a judgment (1) dismissing his complaint in this annulment action; (2) separating her from his bed and board forever upon the ground of his abandonment of her; (3) awarding her alimony; and (4) permitting her to recover moneys which she claimed she had lent to him. Trial Term dismissed the complaint, separated the plaintiff from the defendant, directed him to pay her $20 each week for her support during her natural life plus $60 of arrears of temporary alimony, but dismissed her claim for money lent.
Cross appeals were taken by the parties to the Appellate Division where the judgment of Trial Term was in all respects affirmed. Then the plaintiff brought to us for review the parts of that judgment which are adverse to him. Since the defendant is content with the affirmance by the Appellate Division, her action for money lent is no longer of any importance.
With exceptions that are here without application, the law of this State denounces as void a marriage by a person whose husband or wife by a former marriage is living. (Domestic Relations Law, § 6.) Thus the attempted marriage here in question was wholly without validity from its beginning; it created neither right nor duty; it gave neither scope for recrimination nor room for any counteractive estoppel. Hence there could be no offense against it and, that being so, the plaintiff was free to bring this annulment action though he did not come to the court with clean hands. Hence, too, the defendant — though she may have acted in good faith — has no right to the judgment of separation that was awarded to her by the courts below ( Fischer v. Fischer, 254 N.Y. 463, 466). This result, we think, is dictated by the statute for reasons that can be readily seen.
The judgment of the Appellate Division and that of the Trial Term should be reversed, without costs, and the action remitted to Trial Term for further proceedings not inconsistent with this opinion.
LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.
Judgment accordingly.