
    Harriett E. Allen, Respondent, v. John P. Allen, Appellant.
    First Department,
    May 8, 1908.
    Husband and wife — pleading — separation — adultery of defendant — answer — marriage.
    A mere allegation of adultery does not state a cause of action for separation under section 1762 of the Code of Civil Procedure.
    An answer, in such an action, which denies knowledge or information §ufficient to form a bblief as to the marriage, cannot be stricken out as frivolous where it appears by affidavit that defendant knows of no such marriage, and that if ever entered into it was at a time when he was either drugged or so intoxicated as to be unable to understand that he was contracting a marital relation.
    
      And where the complaint avers specific acts of adultery within five years and that prior to and subsequent to those dates defendant committed the same offense, an answer denying that five years have not elapsed since plaintiff discovered the adultery is not frivolous.
    McLaughlin, J., dissented in part, with opinion.
    Appeal by the defendant, John P. Allen, from so much of an order of the Supreme Court, made at the Hew York Special Term, bearing date the 7th day of April, 1908, and entered in the office of the clerk of the county of Hew York, as strikes out the defendant’s answer as frivolous.
    
      Solon J. Liebeskind, for the appellant.
   Scott, J.:

The defendant appeals from' an order striking out his answer as frivolous. The complaint sets out an action for divorce on the ground of adultery, hut the relief demanded is a separation from bed and board. It is apparent that the complaint does not state a cause of action for a separation under section 1762 of the Code of Civil Procedure, for the mere allegation that the defendant has been guilty of adultery has never been held to amount to an allegation of cruel and inhuman treatment of plaintiff by defendant, or of such conduct on the part of the defendant towards the plaintiff as may render it unsafe and improper for the former to cohabit with the latter-. If the defendant had not answered the plaintiff would have been limited to the relief demanded in her complaint (Code Civ. Proe. § 1207), and as that could not follow upon the allegation of the complaint she could have obtained no judgment, and the same result must follow if the answer remain stricken out. The defendant, however, insists upon his right to answer and his appeal raises the question of sufficiency of the answer which lie interposed. The 1st paragraph of the complaint alleges the marriage of the parties on or about January 12, 1891. The answer denies knowledge or information sufficient to form a belief as to this allegation. The court below considered that since the fact of a person’s marriage is one peculiarly within his own knowledge, lie cannot be heard to deny knowledge or information on the subject. Usually this is undoubtedly true, and yet it is conceivable that the circumstances attending an alleged marriage may have been such that a person alleged to have been married may honestly be unable to say whether he was married or not. Such a case the defendant undertakes to set forth in an affidavit read in opposition to plaintiff’s motion. He avers that he has no knowledge of any marriage ceremony ever having been entered into between the plaintiff and the defendant, except that the plaintiff has claimed that at one time the plaintiff and defendant were married, and he further avers that if such marriage was ever entered into, the same was entered into at a time when the defendant was either drugged or was so far under the influence of liquor as to be unable to understand the contracting of such marital relations and he has no knowledge thereof. He also avers that plaintiff and defendant have never cohabited as man and wife. We think that under this state of facts the defendant was justified in pleading lack of'knowledge or information sufficient to form a belief as to his marriage, and that his answer in that regard was not, under the circumstances, frivolous. The answer also denies plaintiff’s allegation that five years have not elapsed since the plaintiff discovered the fact of the alleged adultery as averred in the complaint, and affirmatively alleges that plaintiff did discover the fact of said alleged adultery more than five years before the commencement of the action. The complaint in its 3d paragraph alleges acts of adultery by defendant on the 16th and 24th days of September, 1903, and obviously the fact of the commission of these acts could not have been discovered more than five years before the commencement of the action since they are alleged to have occurred within five years before the action was commenced. The 4th paragraph, however, alleges that prior to and subsequent to the dates mentioned in paragraph 3 the defendant also committed adultery. The acts alleged in this paragraph are not limited as to time, and it may well be that Upon the trial the plaintiff might rely upon acts committed more than five years prior to the commencement of the action, and as to such acts the defense now under consideration would be far from frivolous.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to strike out denied, with ten dollars costs.

Ingraham, Laughlin and Clarke, JJ., concurred.

McLaughlin, J. (concurring):

I concur in the opinion of Mr. Justice Scott, hut not upon all of the grounds therein stated. I am of the opinion that the complaint, as such, states a cause of action — that is, that under the allegations there set forth proof would be admissible to establish that the defendant’s conduct constituted cruel and inhuman treatment of such a character as to render it unsafe and improper for the plaintiff to longer cohabit with him. I cannot conceive of any more cruel and inhuman treatment to a highly sensitive, educated and moral woman than open and notorious acts of adultery on the part of the husband. What act could be more humiliating or likely to affect the health of such a person than that the husband should insist upon keeping his mistress in the home, or that he should frequently be seen in public with her ? Such acts to many women would be more cruel and do more to impair their health than threats or physical injury. For this reason it seems to me the complaint states a cause of action for a separation under section l'?62 of the Code of Civil Procedure.

The complaint alleges that the parties were married on or about January 12th, 1891. The answer denies knowledge or information sufficient to form a belief as to this allegation. This is not a good answer in my judgment. I cannot conceive of a case where a party could have been married and not have knowledge of that fact sufficiént to form a belief. If, when the alleged marriage took place, the party did not know what he was doing — in other words, was in such a condition of mind that he did not know he was entering into a contract — then a legal marriage never took place, and in his answer he could deny the fact of the marriage. A marriage is a contract and nothing else, which presupposes the meeting of two minds on the subject-matter of it. If the defendant, when the ceremony was performed, “ was either drugged or was so far under the influence of liquor as tc be unable to understand the contracting of such marital relation,” then in law the proceeding amounted to nothing, because the meeting of minds presupposes sufficient intelligence to determine whether the contract shall be made. Unless there be present this degree of intelligence at the time the marital relation is entered into, then there is no contract. The answer, in so far as it denies the allegation of the complaint that five years have not elapsed since the plaintiff discovered the fact of the alleged adultery, and affirmatively alleges that more than five years have elapsed since such fact was discovered, is good. If these facts be established at the trial, they will constitute a defense to the plaintiff’s cause of action.

ITpon this ground alone, therefore, I concur in the reversal of the order appealed from.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  