
    AMORY against AMORY.
    
      New York Superior Court; Special Term,
    
    
      November, 1866.
    Divobce—New Teial.
    The provision of Rev. Stat., 145, § 40—that in actions for divorce on the ground of adultery, the court may, if the offence charged is denied, award a new or further trial as often as justice shall seem to require, was intended to award a new trial of the issue upon the charge of adultery ; and does not relate to the trial of any other issue.
    The statute does not authorize a new trial to be granted to a plaintiff, whose action was dismissed upon the first trial for her failure to prove her marriage with the defendant. „ 1
    The power conferred by § V1Í of the Code of Procedure upon the courts, to relieve a party from a proceeding taken against him through mistake, &c., cannot be exercised” after the expiration of the year limited in that section from a notice of the proceeding.
    Motion to open or set aside a judgment, and for a new trial.
    This action was commenced in July,' 1857, by Angelina Amory against James Amory, to procure a divorce upon the ground of the alleged adultery of the defendant.
    The defendant, by his answer,' after denying the marriage, alleged, as a separate defence, that, at the time of the supposed marriage, the plaintiff was the lawful wife of one William A. Williams, who was then living.
    The issues were sent to a referee for trial, who found as facts: First, That the plaintiff and defendant were never married; and, second, That at the time of the alleged marriage, the plaintiff was the lawful wife of William" A. Williams,'who was then living. ■
    Upon the report of the referee, it was adjudged by this court, that the plaintiff and defendant were never married, and also that the plaintiff was incapable of contracting a lawful marriage with the defendant, by reason of her former marriage with Williams; and was, therefore, not entitled to the-relief she demanded. Such judgment was entered on the 2d October, 1-860. Prior thereto, however, a motion was made on behalf of the plaintiff to open the case for further proof of the marriage with the defendant, which, after full consideration, was denied.
    The plaintiff now moved that the judgment be opened or set aside, and that a new trial be granted.
    It was now alleged, in support of this motion, that in 1851, in a suit for the partition of lands, the defendant and plaintiff were parties; that the plaintiff was therein alleged to be the wife of the defendant, and to be entitled to an inchoate right of dower in her husband’s share, and that the decree in such suit provided for the payment to the plaintiff of a sum in gross, in satisfaction of said right of dower, upon her releasing the same to her husband. And it was insisted that such recognition I and admission in that suit, of the plaintiff, as the wife of the defendant, and the adjudication" thereon establishing the marital relations of the parties, were an estoppel on the defendant to deny the marriage; and that, with such proof before the referee, he could not have found the parties were not married.
    
      S. Sanxay, in support of the motion.
    
      W. Fullerton, opposed.
   Monell, J.

It is by statute that in actions for divorce on ground of adultery, the court may, if the offence charged is denied, award a new or further trial of such issues, as often as justice shall seem to require (2 R. S., 145, § 40). And it is claimed, on behalf of the plaintiff, that she is entitled to the relief she demands under such provision. I have not been able to find any judicial construction of that statute, but & I am of opinion that it has no application - to this case. The section was evidently intended to give the court power to award a new or further trial, after a trial of the issue made by the pleadings, of the adultery charged. It provides that if the offence is denied, the court shall direct an issue to be made, for the trial of the facts contested by the pleadings, by a jury, and may award' a new trial, &c. The section does not relate to the trial of any other issues. Indeed the whole article where the section is to be found, relates solely to divorces on the ground of adultery. A party against whom such issue has been found by a jury, may have a second trial, if justice shall seem to require it. It cannot be that a plaintiff, who charges adultery by, the defendant, and is defeated in. .his action, can claim a new trial under the statutes referred to. In the case before me, the plaintiff’s suit was dismissed upon her failure to prove a marriage, and, upon the further ground, that she was incapable of contracting a marriage. The issue of the defendant’s adultery was not tried, it being unnecessary to try it, after the other issues had been found against the plaintiff.

I am satisfied that the plaintiff cannot claim the benefit of the statute to which I have referred. A defeated party, whose guilt of the offence has been established by the verdict of a jury, can alone avail himself of its provisions.

The Code provides (§ 174) that at any time within one year after notice thereof, the court may relieve a party from a judgment, order or other proceeding, taken agaipst him through his mistake, inadvertence, surprise or excusable neglect. But such provision limits the power to one year after notice, and is conclusive on this motion, as it is not claimed that the defendant had not notice of the judgment she seeks to open, at the time it was entered.

There is, however, another answer to this motion, which goes more to the merits of the application.

The only reason assigned for a new trial, is the evidence of marriage furnished by the partition suit; which it is claimed should conclude the defendant. Admitting that such effect would necessarily have to be given to the evidence suggested, there is still the other fact, which the plaintiff does not propose to controvert, namely, that at the time of her marriage to the defendant, she was a married woman. Such fact of itself rendered a marriage with the defendant wholly void. Bishop on Divorce, Vol. I, § 299.

Under any aspect, therefore, even though the court had the power to open the judgment, and this was a case in which such power should be exerted, the plairitiff would be without any substantial relief. Her former marriage stands as a perpetual bar to her claiming to be' the wife of the defendant. More than six years have elapsed since a solemn judgment of this corn’t was pronounced against the plaintiff. What new relations the parties, or either of them, have formed, does not appear. But the security and quietude wit’- ‘ ' h judgment has afforded, should not be disturbed, exc • f most clear and conclusive reasons.

I-find nothing in the papers before me wh- ■ ■ nnishes any such reasons.

The motion must be denied.  