
    ANONYMOUS.
    
      Supreme Court, First Department, First District ;
    
    
      General Term, January, 1874.
    Divorce.—Pleading.—Parties.—Affirmative Relief.
    In an action for divorce, brought by a husband against his second wife, on the ground that he had a first wife living at the time of the second marriage, he obtained a divorce by her failure to defend ; and he afterward married a third wife. The second wife was subsequently allowed to open the judgment of divorce on the ground of fraud, and to put in an answer alleging the validity of the second marriage. The third wife then obtained leave of court to intervene, and she put in an answer alleging the invalidity of the second marriage and insisting on the validity of her own, the third. Held, that without any amendment of the complaint, the court could not adjudge both the second and third marriages void.
    It is only where such relief is applied for in the manner prescribed for in the statute, by one of the parties to the marriage claimed to be unlawful on account of the existence of a former husband or wife of one of them, that the statute allows such marriage to be adjudged void.
    
    The relief to be awarded in an equitable action must be in accordance with the allegations of the pleadings as well as with the proofs. It is not sufficient in such a case to sustain a judgment in favor of the plaintiff, for relief that he has not asked for, and on a ground not submitted to the court by his complaint, that it appears from the proofs taken that he may be entitled to it.
    The plaintiff in this action married his first wife in England in 1839; soon separated from her and married a second wife in this country in 1843 ; obtained a divorce from the second wife in 1864, in an action which she did not defend ; and in 1865 married a third wife, both the first and second being living. The questions now before the court arose out of the application of the second wife, on which the judgment of divorce was opened, thus reinstating her again, and the consequent application of the third wife to be allowed to intervene and litigate for her own protection in defense of the third marriage. The details necessary to an understanding of the decision are as follows.
    The plaintiff, who was then a resident. of England, on April 23, 1839, married his wife No. 1, and after living with her for about one year, left and abandoned her, and came to the city of New York, where he has since resided. About three months after her abandonment by the plaintiff, she was delivered of a daughter, the result of their marriage. On or about May 31, 1843, a deed of separation was executed between them, providing, among other things, that they should live separate and apart from each other, but containing nothing whatever from which it could be claimed, or inferred, that either of them was to be at liberty to marry again. But notwithstanding the fact that the marriage itself continued in force, the plaintiff’s wife intermarried again with another man in England, on September 3, 1843 ; and the plaintiff himself, on October 31, 1843, at Brooklyn, married his wife No. 2, the real defendant in this action. After living with her for twenty years, and having by her five children, who are still living, he separated from her, on the unfounded pretense that * he was in danger of disturbance from the interference of his first wife, and that he had just discovered that his second marriage was void, because he had no right to contract it, as he supposed he had, by force of the deed of separation between himself and his first wife. He' appears to have succeeded in impressing the wife of the second marriage with the conviction that Ms marriage with her was void for the reason assigned by him, and she submitted to an adjudication of that fact in this action without interposing any defense.
    
      That adjudication seems to have been greatly owing to the evidence of a witness named John Slade, who was produced, on the reference ordered to take proof of the facts, by the plaintiff, and whose evidence there is good reason to believe was willfully and completely false.
    On March 7, 1864, the judgment was recovered, declaring the marriage solemnized in 1843 void, for the reason that the plaintiff’s first wife continued tobe alive ; and while the plaintiff had no reason whatever for supposing his first wife to have died in the mean time, and after having himself, on the reference ordered in the action, shown her to be living, he married his wife Mo. 3, the present respondent, on July 1, 1865, and continued to live with her as his wife, until about October 6,1871, they having during that time two children.
    On October 18, 1871, the wife Mo. 2 applied to the court to be permitted to defend the action in which her marriage had been adjudged unlawful, for the reason that she was deceived by the plaintiff’s representations, and by that means was induced to allow the action to be undefended. The court on October 24 vacated the previous judgment, and allowed her to serve an answer to the complaint, which she did, alleging the validity of her marriage with the plaintiff. The present respondent, the wife Mo. 3, claiming that the last proceeding was collusive, and instituted for the real purpose of establishing the second marriage as valid, was on January 3, 1872, allowed to intervene in the action, for her own protection, and made a party with leave to plead her own rights as against either party to the action. Under that permission an answer was served, in her behalf, setting forth in substance the invalidity of the second marriage, and insisting upon the validity of her own marriage with the plaintiff. The plaintiff’s complaint was in no respect changed, and no reply was made by the plaintiff to this answer.
    
      But the wife of the second marriage replied to the petition of the third wife (on which she had been allowed to become a party), and serve her answer, alleging the validity of the second and the invalidity of the third marriage.
    The case was referred to and heard before a referee, who reported in favor of the plaintiff, against both the second and third wife, and in favor of judgment to that effect. The third wife excepted to the conclusions of the referee, that the plaintiff was entitled to judgment against her, establishing the nullity of her marriage, and the court on argument sustained her exceptions and denied the plaintiff that judgment. From the order containing that denial the plaintiff has appealed.
    
      Smith E. Lane and T. C. T. Buckley, for appellant.
    I. Under sections 118 and 122 of the Code, the court had power to make No. 3 a party (Davis v. Mayor, &c., 2 Duer, 663; Shaver v. Brainard, 29 Barb., 25; Tonnele v. Hall, 3 Abb. Pr., 205 ; Waring v. Waring, Id., 246. Likewise in equity. Story Eq. Pl., 5 ed., §§ 72, 137 ; Calvert on Parties, 3; Redesd. Pl., 164).
    II. The rule is especially applicable to an intervenor on her own application (Story Eq. Pl., 8 ed., § 237, a and b). Her answer submitted the question and supplied the want of allegations in the complaint (Bate v. Graham, 11 N. Y. [1 Kern.] 237).
    III. The several causes might be united (Code, § 167 Vermeale v. Beck, 15 How. Pr., 333).
    
      W. C. Barrett and John L. Hill, for respondent.
    Cited Woods v. De Figaniere, 16 Abb. Pr., 1; Porter v. Mount, 45 Barb., 422 ; Bailey v. Rider, 10 N. Y. [6 Seld.] 363; James v. McKernon, 6 Johns. 543, 559; Tripp v. Vincent, 3 Barb. Ch., 613 ; Jones v. Grant, 10 Paige, 348; Ward v. Davis, 3 Sandf., 510 ; Wright v. Delafield, 25 N. Y. 266 ; Brazill v. Isham, 12 Id., 17; Robbins v. Richardson, 2 Bosw., 255 ; Code, § 275; Crosby v. Leary) 6 Bosw., 312.
    
      
       See 9 Albany L. J., 5, 25.
    
   By the Court.—Daniels, J.

Although the plaintiff’s third wife was allowed to make herself a party to the present action, after the judgment in it was vacated and the second wife allowed to defend and to plead her rights as against either of the parties, and afterwards did so by her answer, that did not enlarge or extend the nature of plaintiff’s action for relief, as it was-presented by the complaint made by him. The action still continued to be the same, simply an action to secure a decree of nullity of the plaintiff’s second marriage. It was framed before the third marriage took place, and from the nature, of things could have no-possible relation to it. The object of the respondent’s answer was not the extension of the plaintiff’s action, so as to bring in controversy the validity of her own marriage, but to maintain the correctness of the plaintiff’s complaint, as to the unlawful nature of the marriage immediately preceding her own. This was for her own protection and the protection of her two children, not to supply the plaintiff with any legal pretense for repudiating her in disgrace, as he had her predecessor, by showing her marriage to be void for the same reason that allowed him to disregard the second wife. When either the respondent or the plaintiff himself succeeded in maintaining the validity of the second marriage, that was the end of her presence as a party in the controversy. That accomplished the real object for which she was allowed to answer, and so far protected and assured her rights to the plaintiff as her husband.

Whether her marriage should also be annulled, was a question in no way pub in issue by the parties. The plaintiff hadmhde no such claim by his complaint, and the respondent asked no relief of that description by her answer, and it is only where that relief is applied for in the manner prescribed in the statute, by one of the parties to the marriage, claimed to be unlawful on account of the existence of a former husband or wife of one of the parties, that the statute has provided for its allowance (3 Rev. Stat., 5 ed., 234, 235, §§ 36-48).

No such application was in any proper manner made in this action, and for that reason it was properly denied by the court, notwithstanding the conclusions contained in the report of the referee. The relief to be awarded in an equitable action as this was, must still be in accordance with the allegations as well as the proofs. That it appears from the proofs taken that the plaintiff may be entitled to it, is not sufficient when the pleadings have wholly omitted to present the matter for the action and adjudication of the court (Field v. Mayor, 2 Seld., 179 ; Kelsey v. Western, 2 Comst., 501, 506; Rome Exch. Bank v. Eames, 3 Abb. Ct. App. Dec., 83; S. C., 1 Keyes, 588). The plaintiff, whose good fortune has so far shielded him from the legal consequences of his repeated violations of the laws of the State, may yet be able to secure the right now denied him, but that would be a very inadequate reason for relieving him from the ordinary requirements the statute has prescribed for cases of this description. If he is to be relieved at all, and under the sanction of the judgment of a court of justice be' placed, in a situation where he may deceive and induce still another woman to marry him, it should only be by strictly bringing himself within all the provisions of the statute upon this subject, whether they relate to the grounds of the action itself or the forms to be observed in bringing them to the notice of the court. The case is one of strict right and not one which deserves to be promoted by any favorable interposition on the part of a court of justice. When neither the fear of the laws nor the duty of securing a reputable social position for his own children, has proved sufficient to restrain the plaintiff from the open violation of their prohibitions, he should not only prove, but in addition to that, present by his complaint in the mode prescribed for that purpose by the statute, the case which may entitle him to be set at liberty to indulge in a repetition of his former offenses. Until that shall be done, no injury whatever can result from subordinating his freedom to the obligations.he apparently regards as the inconvenient consequences of his third marriage.

The plaintiff is entitled to no such relief as he now demands in this action. It has neither been demanded by himself nor by his wife, as the statute requires such an application to be made. For that reason the order appealed from was strictly right, and it should, therefore, be affirmed, with costs.  