Appleton v. Warner

Geo. G. Barnard, P. J. Courts have large powers of amendment of pleadings, if such amendment be “ in fur [272] Iterance of justice.” The papers show very clearly that the first subdivision of the amended answer allowed to be put in is false. Maria Warner told the defendant of the receipt of a letter from her husband, but a year before the marriage with the plaintiff, and the defendant then knew the fact that he was living, and where he was living, and said “ she would not live with him if he should return from San Francisco.” The insanity of the plaintiff, at the commencement of the action, is not an inssuable fact in the action. On the undisputed facts of this case the marriage with the plaintiff was absolutely void. (Fenton v. Reed, 4 John. 52. Williams v. Parisien, 1 John. Ch. 390.) Upon these facts, thus undisputed, no court can hesitate to decree the nullity of the marriage. “May” means “must,” in statutes conferring powers upon courts in cases like this. The power to grant a counsel fee and alimony should not have been exercised. The defendant is not the plaintiff’s wife. She admits the facts showing she is not, and she doeg not claim to be. If the court finally determines, as a'matter of discretion, that it will not decree the nullity of the marriage, still there is no legal marriage ; still the defendant is not the plaintiff’s wife. This being clear at the commencement of the controversy, the plaintiff is under no obligation to support the defendant, or to pay her counsel. It would be most pernicious to compel the support of an adulteress “ out of the plaintiff’s large estate 'until the ultimate decision takes place,” which may be, and in such a case probably would be, for a very considerable time. The plaintiff’ must strike out of his complaint, within ten days, the allegation of fraud on the part of the defendant in the consummation of the marriage with him. The order is not just or right, and should be reversed. Ingraham, J. concurred. [273] If the plaintiff strikes out of the com- [New York General Term, April 1, 1868. Geo. G. Barnard, Sutherland and. Ingraham, Justices.] Sutherland, J. plaint the allegations of fraud and of fraudulent representations, I concur in reversal; otherwise I am for affirming the order. Order reversed.