
    Mary Cochrane McNair, Appellant, v. Thomas Chalmers McNair, Respondent.
    Second Department,
    October 20, 1910.
    Husband and wife — annulment — physical incapacity — Statute of Limitations.
    Where at the time of his marriage a husband fraudulently concealed his physical incapacity and the marriage was never consummated, the wife is entitled to an annulment.
    Although the action for annulment was not commenced within the time limited by section 175S of the Code of Civil Procedure, the court cannot refuse to annul the marriage if the defense was not taken by the answer.
    Appeal by the plaintiff, Mary Cochrane McNair, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4tli day of August, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      George A. Baker [Philip S. Saitta with him on the brief], for the appellant.
    No appearance or brief for the respondent.
   Rich, J.:

This appeal is from a judgment denying the application of the plaintiff for a judgment annulling her marriage with the defendant upon the ground that the defendant was incapable of entering into the marriage state. It appears that the parties were married in January, 1899, and resided together until 1910, when this action was commenced.

The defendant at the time of his marriage was physically incapable of meeting the obligations of the marriage, and it has never been consummated.

We are entirely satisfied from the evidence that a fraud was perpetrated by the defendant, and that the facts warrant the interference of a court of equity. The action was not commenced within the time provided by section 1752 of the Code of Civil Procedure, and the learned justice at Special Term decided that the cause of action was barred by the statute. It is true that the statute was not pleaded, but we know of no rule which requires the court to deny to a party that which would otherwise be a legal right, because of the Statute of Limitations, unless it is pleaded as a defense. (See Code Civ. Proc. § 413; Kaiser v. Kaiser, 16 Hun, 602; 8 Abb. N. C. 187, note.)

The judgment must be reversed and the proceeding remitted to the Special Term for further consideration.

Hirschberg, P. J., Woodward, Burr and Carr, JJ., concurred.

Judgment reversed and proceedings remitted to the Special Term or trials for a rehearing.  