
    Arthur Durham, Respondent, v. Cora W. Durham, Appellant.
    
      Matrimonial action — the court has no common-law jurisdiction — in an action by a wife for separation the husband may not set up as a counterclaim that the marriage was procured by fraud —■ he may set it up as a defense — if it is not set up it is barred by a judgment for separation—judgment on the pleadings not granted on motion in a matrimonial action.
    
    With respect to matrimonial actions the courts have no common-law jurisdiction, but only such jurisdiction as is conferred by statute or such only as is incidental to the exercise of the power thus conferred.
    
      In an action brought by a wife against her husband to obtain a separation, the husband is not entitled to set up as a counterclaim that the marriage was procured by fraud and duress, practiced upon him by his wife, for the reason that the statutes relating to actions for a separation do not authorize such a counterclaim.
    The husband is, however, entitled to set up such matter as a defense to the separation action, for the reason that the existence of a valid marriage was a prerequisite to the wife’s right to maintain the action for separation.
    If the husband neglects to interpose such defense in the separation action and such action results in a judgment in favor of the wife, such judgment, while it remains in force, is conclusive against the husband’s right to maintain an action for the annulment of the marriage because of such fraud and duress.
    In a matrimonial action the court will not grant a motion made at the Special Term for judgment upon the pleadings, but will leave the rights of the parties to be adjudicated upon the trial.
    Appeal by the defendant, Cora W. Durham, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of October, 1904, denying the defendant’s motion for a final judgment upon the pleadings.
    
      Edward Lazansky, for the appellant.
    
      David May, for the respondent.
   Hatch, J.:

This action was brought to annul a marriage contract subsisting between the parties hereto upon the ground that the consent of the plaintiff was procured thereto by fraud and duress practiced upon him by the defendant. The answer admitted the marriage, denied the other material allegations of the complaint and further avers for a separate defense that an action for a separation was brought in the Supreme Court, Kings county, by the defendant herein against the plaintiff; that the plaintiff appeared therein and answered; that the cause of action which he has pleaded in the complaint had accrued at that time, but that he did not plead it either as a counterclaim or by way of defense ; that the said action resulted in a judgment in favor of the plaintiff therein, granting her a separation and directing him to pay alimony. The said judgment further decreed that the said Cora W. Durham was the lawful wife of the said Arthur Durham. Upon motion of the defendant the plaintiff was directed to reply to the affirmative defense set forth in defendant’s answer. Thereafter the plaintiff served a reply to the answer, in which he averred that under and by virtue of the statute in such case made and provided the cause of action made and set forth in the complaint herein could not have been pleaded as a counterclaim or defense in said separation action, nor did the same constitute a counterclaim or defense thereto. The defendant then moved fora judgment dismissing the complaint upon the pleadings. The motion was denied, and from the order entered thereon this appeal is taken.

We agree with the learned, court below that the plaintiff could not have pleaded the facts averred in his complaint by way of counterclaim to the separation action. In matrimonial actions jurisdiction is derived from the statute relating to such subject. There exists no common-law jurisdiction over the matter, and the court in administering the same can only exercise such jurisdiction as the statute confers, or such as is necessarily incidental to the exercise of the power conferred thereby. (Erkenbrach v. Erkenbrach, 96 N. Y. 456.) Section 1770 of the Code of Civil Procedure makes provision for a defense by way of counterclaim, but in its application it is limited to an action for a divorce a vinculo and a mensa et thoro. A defense by way of counterclaim upon facts which would authorize the annulment of a marriage is not provided for in the section and does not seem to be authorized by any other statute. That a counterclaim is not permissible as a pleading under such circumstances was held in Taylor v. Taylor (25 Misc. Rep. 566; afifd. by this court without opinion, 68 App. Div. 638). Such conclusion, however, does not meet the present situation. While the plaintiff herein could not have pleaded the matter by way of counterclaim, he was not deprived of pleading the matter in defense to the action of separation. The existence of a valid marriage lies at the foundation of the right to maintain matrimonial actions. The right to judgment in an action for separation is dependent upon facts showing a disregard of the obligation and duty which arise out of the marital obligation and can only attach when such relation exists. In the action of separation, therefore, the plaintiff was required to establish the existence of a valid marriage as a prerequisite to her right to a judgment compelling the fulfillment of the obligation and duty which flowed therefrom. If there was failure to establish the existence of a valid marriage contract there would of necessity he failure to establish any obligation or duty owed by the plaintiff to the defendant, as it could only arise out of such a contract. It necessarily follows that if there existed no valid marriage it would have constituted a complete defense to the action for separation, for if established it would appear that the plaintiff never had a cause of action, as no legal obligation or duty upon the part of the defendant to her could possibly arise. The matter set forth in the present complaint was, therefore, available to the plaintiff in this action as a defense to the action for separation. The issue of marriage between the parties in the last-named action was directly and necessarily involved, and no judgment could proceed from the court in favor of the plaintiff therein unless it was established; consequently when judgment passed in that action in favor of the plaintiff, it necessarily established the existence of a valid marriage, and so long as the judgment stands it is conclusive of such question upon the parties to the litigation. Such a situation brings the case directly within the rule announced in Pray v. Hegeman (98 N. Y. 351), as it was matter comprehended within the issue involved and could have been actually litigated therein and determined. Indeed the issue was necessarily determined by the judgment which was pronounced. That such a judgment is res adjudioata was expressly held in Townsend v. Van Buskirk (22 App. Div. 441). It follows, therefore, that while the matter pleaded by way of counterclaim would lie unavailing because not authorized by the Code of Civil Procedure and because the court would be powerless to award an affirmative judgment in favor of the defendant thereon, yet it did go directly to the issue of marriage involved in the separation action, and the plaintiff herein, if he sought to attack the validity of the marriage contract, was necessarily bound to plead it as a defense in such action. But, notwithstanding this conclusion, we are of opinion that the motion was properly denied. Public policy requires that issues raised in actions should be disposed of only upon a trial, and not upon motion; and while it is true that the defendant may doubtless move at the trial to dismiss upon the pleadings, as they then appear, the court will then have before it all of the facts and circumstances, together with the parties, which does not usually obtain upon motions, and may at that time make an inquiry into every fact and circumstance which affects the litigation, and pronounce solemn judgment thereon. All rights of which the parties are possessed should await determination at a Trial Term of the court, where the matter may be adjudicated with care and precision in accordance with such rights as may be ascertained.

Tile order should, therefore, be affirmed and the motion denied, without costs to either party as against the other.

Yan Brunt, P. J., Patterson and Ingraham, JJ., concurred.

Laughlin, J. (concurring):

I concur in the result, but dissent from the views expressed in the prevailing opinion. An action for the annulment of a marriage proceeds upon the theory that a marriage valid in form and in effect until annulled took place. Unlike other contracts, fraud does not render this contract void or even voidable at the election of the party imposed upon, but only upon such election and the decree of the court. The action for a separation involved the fact of the marriage, but not the question as to whether facts existed which would justify the cancellation of the contract should the defendant elect to bring an action therefor. The facts might not have been known to him at the time, and if they were the statute gives him a definite time within which to make his election, which cannot be abridged by a suit against him for separation in the meantime. The defendant in the action for a separation should, if he then knew the facts and determined to elect to have the marriage annulled, have brought an action for the annulment of the marriage, and have stayed proceedings in the other pending the trial and decision thereof. That would ha-ve relieved the parties and the court of the perhaps unnecessary and fruitless burden of trying the action for a separation; but I am not prepared to say that he was obliged to take that course. If there was issue of the marriage he might refrain on that account from endeavoring to have the marriage annulled; and if such issue died before the expiration of the period for bringing an action to annul the marriage, he should not be barred from maintaining his action merely because in the meantime an action for a separation had been successfully maintained against him.

Order affirmed and motion denied, without costs.  