
    William C. Tiedemann, Plaintiff, v. Lillian M. Tiedemann, Defendant.
    (Supreme Court, Kings Special Term,
    March, 1916.)
    Marriage — action to annul — husband and wife — when plaintiff entitled to judgment.
    Where in an action to annul a marriage it appears that the parties acted in good faith and in the belief, after full and careful inquiry, that defendant’s first husband, from whom she had not heard for over seven years and did not know him to he alive, was dead, plaintiff is entitled to judgment though he knew all the defendant knew about the facts before he married.
    Action for the annulment of a marriage.
    
      Julian Y. Carabba, for plaintiff.
    Charles A. Oberwager, for defendant.
   Crane, J.

The law of annulment of a marriage under section 1743, subdivision 2, of the Code of Civil Procedure is as follows:

If the wife knows at the time of her second marriage that her first husband is living, the marriage is void, not voidable, and no legal proceedings are necessary to set it aside. The fact that the second husband also knew that the first husband was alive, or continued to live with the woman after discovering the truth, will not estop him from avoiding his marriage. In such a case, there can be no equities to prevent the second husband declaring the marriage void. On the other hand, if the second marriage takes place under circumstances stated in subdivision 5 of section 7 of the Domestic Relations Law, that is, after the first husband has absented himself for five successive years then last past without being known to the wife to be living during that time, then the second marriage is not void, but voidable at the suit of any of the three parties, the first or Second husband or the wife. It remains in full force and effect until declared void by a court of competent jurisdiction.

■ Suppose the parties to the second marriage, after waiting the required time, have acted in good faith and in the belief after full and careful inquiry that the first husband was dead, can the second husband, upon discovering that the husband is alive, annul the marriage as of right at any and all times and under any circumstances, or are there certain equitable considerations which will prevent a court granting him relief ?

Stokes v. Stokes, when in the Appellate Division (128 App. Div. 838) resulted in an opinion that there were such equities. Woodward, J., wrote: “It has been held in various cases where a marriage is not void, but voidable, that the court will deny the complainant relief where a party fails to come into court with clean hands.” The authorities cited are: Tait v. Tait, 3 Misc. Rep. 218, an action to annul for fraud in procuring the marriage; McCarron v. McCarron, 26 id. 158, containing dicta upon the point, the decision being on another question; Petit v. Petit, 45 id. 155, holding that co-habitation for two years after knowledge of the facts will bar relief. The Stokes case was reversed in the Court of Appeals (198 N. Y. 301) upon the ground that the findings made out a void, not a voidable, marriage, but the question of equities was touched upon in the concluding sentence of the opinion as follows: “While it may well be that there are extreme cases where the position of the party seeking relief of the kind sought here is so inequitable that a court of .equity will refuse to interfere, no such defense was pleaded or sufficiently proved in the case before us.”

I take it, therefore, that equities may exist but must be extraordinary or of such a degree as to move the court to do an unusual thing. Thus in Brown v. Brown, 153 App. Div. 645, the Appellate Division, first department, thought that the Court of Appeals in the Stokes case refused to apply the equitable principles involved and therefore determined to narrow the ruling in the Berry case (Berry v. Berry, 130 App. Div. 53) to the facts thereof. While this was a mistake, as the Court of Appeals decided the Stokes case upon the findings made by the trial court that the wife knew of the existence of the first husband at the time of her second marriage, therefore making the marriage void, not voidable, which no equities of any kind could relieve, yet the Appellate Division had in mind, no doubt, that if equitable considerations were to move the court to deny relief they must be such as to prevent a fraud. This was the intimation in Hall v. Hall, 139 App. Div. 120, 125.

If the above be a correct statement of the law, the testimony in this case compels me to give a judgment for the plaintiff annulling his marriage to the defendant.

The parties acted in perfect good faith. The defendant had not heard from her first husband for over seven years and did not know him to be alive; she consulted a lawyer who advised her that after so long an absence she had the right to get married. These facts she communicated to the plaintiff, a sea captain who came to the port of New York a few times during the year. Taking the facts in the most favorable light to the defendant, as I desire to do, I can make out the following: The plaintiff knew the defendant’s husband, John B. Hamill, before he disappeared; he knew he had left his wife and children in 1902 and that after inquiry by the defendant could not be found; the plaintiff also knew that the defendant had consulted a lawyer who gave the advice that after the lapse of five years the plaintiff, if she upon reasonable inquiry could not find Hamill, might legally marry again; also that the plaintiff had no knowledge, nor was he actually informed, that Hamill was dead and that he made no inquiry on his own account to discover Hamill’s existence; I might say that the plaintiff knew all the defendant knew about the facts before he married. The evidence is uncontradicted that the first time Captain Tiedemann knew that Hamill was alive was in 1914 when he left the defendant after having lived with her when in port and having supported her since 1909. But granting to the plaintiff all these findings of fact, they do not establish such equities within the rules herein stated as to permit this court to deny the relief asked. Judgment must, therefore, be granted annulling the marriage of October 28, 1909, between the plaintiff and the defendant on the ground that at that time the defendant’s first husband, John B. Hamill, was alive.

Judgment accordingly.  