Opinion
July, 1898.
Daniel Haight (Frederick W. Sherman, of counsel), for motion.
Thomas Gilleran, opposed.
In a judgment annulling a marriage because of a subsisting marriage between the defendant and another woman, provision is made for permanent alimony to the plaintiff.
The foundation of the right to alimony being the duty of the husband to support his wife (Collins v. Collins, 80 N.Y. 1, 12); obviously, if the woman be not his wife, she can have no claim to alimony. Blinks v. Blinks, 5 Misc. 193. As the marriage between these parties was not voidable merely but void ab initio, the plaintiff was never the defendant's wife. Hopper v. Hopper, 92 Hun, 415.
Upon principle, there can be no provision for alimony in a decree of nullity (2 Bish. on M. D., § 855), and the Code does not authorize it. § 1771; Bartlett v. Bartlett, 1 Clarke Ch. 460.
The sum exacted of the defendant is devoted also to the maintenance of the children; but provision for children, in a judgment of nullity, is authorized only when the marriage is avoided for defect of legal consent. Code Civ. Pro., § 1751.
Upon another ground, however, the judgment is invalid, in so far as it awards alimony, maintenance and costs. The defendant was not served with process within the state, nor did he appear in the action. The court, therefore, was without jurisdiction to impose upon him any personal obligation. Rigney v. Rigney, 127 N.Y. 408; Pennoyer v. Neff, 95 U.S. 714, 727.
Objection is urged that the relief sought is attainable only by appeal. But, since no appeal lies from a judgment on default, the sole and the appropriate remedy for error or irregularity in the decree is by motion in the action. Code Civ. Pro., § 1294; Moeschler v. Lochte, 12 N.Y. St. Repr. 855; Park v. Park, 80 N.Y. 156, 160.
The plaintiff is the innocent victim of a villain, and it is to be regretted that the intended reparation of her wrongs is illusory. Still, for the fraud in feigning to be a single man, the defendant is liable in damages, and for the bigamy may be sent to the state's prison.
Motion granted, without costs.