SEC. 1752. Action on the ground of physical incapacity.

1753. Certain proceedings regulated in action to annul marriage. 1754. Judgment annulling a marriage; how far conclusive.

1755. How next friend of infant, lunatic, etc. allowed to sue, etc.

1742. Action by woman, married under 14, to annul marriage.-An action may be maintained, by the woman, to procure a judgment, declaring a marriage contract void, and annulling the marriage, under the following circumstances:

1. Where the plaintiff had not attained the age of fourteen years, at the time of the marriage.

2. Where the marriage took place without the consent of her father, mother, guardian, or other person having the legal charge of her person.

3. Where it was not followed by consummation or cohabitation, and was not ratified by any mutual assent of the parties, after the plaintiff attained the age of fourteen years.

L. 1841, ch 257 (4 Edm. 512), amended; see, also, 2 R. S. 142, 21 (2 Edm. 148): see Bennett v. Smith, 21 Barb. 439; Aymer v. Roff, 3 Johns. Ch. 49.

$1743. In what other cases marriage may be annulled. An action may also be maintained to procure a judgment, declaring a marriage contract void and annulling the marriage, for either of the following causes, existing at the time of the marriage:

1. That one or both of the parties had not attained the age of legal consent.

2. That the former husband or wife of one of the parties was living, and that the marriage with the former husband or wife was then in force.

3. That one of the parties was an idiot or a lunatic. 4. That the consent of one of the parties was obtained by force, duress, or fraud.

5. That one of the parties was physically incapable of entering into the marriage state. But an action can be maintained, under this subdivision, only where the incapacity continues, and is incurable.

2 R. S. 142, 20 (2 Edm. 147); Devenbaugh v. Devenbaugh, 5 Paige, 554; Kaiser v. Kaiser, 16 Hun, 602; Cropsey v. McKinney, 30 Barb. 47; Kinnier v. Kinnler, 45 N. Y. 535; Smith v. Woodworth, 44 Barb. 198; Haviland v. Haviland, 34 N. Y. 643; Anon.. 15 Abb. N. S. 171; Palmer r. Palmer, 1 Paige. 276; Wightman v. Wightman, 4 Johns. Ch. 343; L. 1862. ch. 246; Montgomery v. Montgomery. 3 Barb. Ch. 132; see Glinsman v. Glinsnian, 12 How. 32; Devenbaugh v. Devenbaugh, 5 Paige, 554 8. C., 6 id. 175; B- v. B 8 Abb. 44; 8. c., 28 Barb. 299; Griffin v. Griffin, 47 N. Y. 134, 136; see Griffin v. Griffin, 23 How. 183.

1744. Action when party was under the age of consent. An action to annul a marriage, on the ground that one of the parties had not attained the age of legal consent, may be maintained by the infant, or by either parent of the infant, or by the guardian of the infant's person; or the court may allow the action to be maintained by any person, as the next friend of the infant. But a marriage shall not be annulled, at the suit of a party who was of the age of legal consent when it was contracted, or where it appears that the parties, for any time after they attained that age, freely cohabited as husband and wife.

2 R. S. 142, 21 (2 Edm. 148), amended; In re Whitlock, 32 Barb. 48; see, also, 2 26, and 22 1748 and 1755, post; Rule 79; Bennett v. Smith, 21 Barb, 139; see Aymer v. Roff, 3 Johns. Ch. 49.

1745. Id.; when former husband or wife was living. An action to annul a marriage, upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties, during the lifetime of the other; or by the former husband or wife. Where it appears, and the judgment determines, that the subsequent marriage was contracted in good faith, and with the full belief of the parties that the former husband or wife was dead, the issue of the marriage, born or begotten before the final judgment, are entitled to succeed in the same manner as legitimate children, to the real and personal property of the parent, who, at the time of the marriage, was competent to contract: and the issue so entitled must be specified in the judg

ment.

Id., 22 and 23 consolidated and amended; Rule 79; Anonymous, 15 Abb. N. S. 171; Cropsey v. McKinney, 30 Barb. 47; Kinnier v. Kinnier, 45 N. Y. 535; Smith v. Woodward, 44 Barb. 198; Haviland v. Halsted, 34 N. Y. 643: Montgomery e. Montgomery, 3 Barb. Ch. 132; Lyon v. Lyon, 62 Barb. 138; Rule 79; Borradaile v. Borradaile, 1 Edw. Ch. 40.

1746. Id.; where party was an idiot.-An action to annul a marriage, on the ground that one of the parties thereto was an idiot, may be maintained, at any time during the life-time of either party, by any relative of the idiot, who has an interest to avoid the marriage. Id., 24; Rule 79.

1747. Id.; where party was a lunatic-An action to annul a marriage, on the ground that one of the par

ties thereto was a lunatic, may be maintained, at any time during the continuance of the lunacy, or, after the death of the lunatic, in that condition, and during the life of the other party to the marriage, by any relative of the lunatic, who has an interest to avoid the marriage. Such an action may also be maintained by the lunatic, at any time after restoration to a sound mind; but in that case, the marriage should not be annulled, if it appears that the parties freely cohabited as husband and wife, after the lunatic was restored to a sound mind.

Id.. 25 and 27 consolidated; Wightman v. Wightman, 4 Johns. Ch. 343; Rule 79; Appleton v. Warner, 51 Barb. 270.

§ 1748. Action by next friend of idiot or lunatic.Where no relative of the idiot or lunatic brings an action to annul the marriage, as prescribed in either of the last two sections, the court may allow an action for that purpose to be maintained, at any time during the life-time of both the parties to the marriage, by any person as the next friend of the idiot or lunatic. But this section does not apply, where the marriage might have been annulled, at the suit of the lunatic, as prescribed in the last section.

(d., 26: see, also, 1744, ante, and 1755, post.

§ 1749. Issue; when entitled to succeed, etc.- A child of a marriage, which is annulled on the ground of the idiocy or lunacy of one of its parents, is deemed for all purposes, the legitimate child of the parent who is of sound mind.

Id., 28.

1750. Action on the ground of force, fraud, etc.An action to annul a marriage, on the ground that the consent of one of the parties thereto was obtained by force, duress, or fraud, may be maintained, at any time, by the party whose consent was so obtained. Such an action may also be maintained, during the life-time of the other party, by the parent or the guardian of the person of the party, whose consent was so obtained, or by any relative of that party, who has an interest to avoid the marriage. But a marriage shall not be annulled on the ground of force or duress, if it appears that, at any time before the commencement of the action, the parties thereto voluntarily cohabited as hus

band and wife; or on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.

Id., 30 and 31, amended; L. 1862, ch. 246; see 1743, ante; Montgomery v. Montgomery, 3 Barb. Ch. 132; Glinsinan e. Glinsman, 12 How. 32; Sloan v. Kane, 10 How. Pr. 66; Klein v. Wolfsohn, 1 Abb. N. C. 134: Clarke v. Clarke, 11 Abb. Pr. 228; Scott v. Shufeldt, 5 Paige, 43; Blossom v. Barrett, 37 N. Y. 434.

1751. Custody, maintenance, etc., of issue of such a marriage. The court must, upon the application of the plaintiff, award the custody of the children of a marriage, which is annulled on the ground of force, duress, or fraud, to the innocent parent, unless it appears that the latter is unfit, for any reason, to have the custody of one or more of the children, in which case the court must give such directions relating thereto, as the interests of the child or children require. The judgment may make provision for the education and maintenance of the children, out of the property of the guilty parent.

Id., 32, amended.

§ 1752. Action on the ground of physical incapacity. An action to annul a marriage, on the ground that one of the parties was physically incapable of entering into the marriage state, may be maintained only by the injured party, against the party whose incapacity is alleged. Such an action must be commenced, before two years have expired since the mar riage.

Id., 33: Devenbaugh v. Devenbaugh, 5 Paige, 554: 8. C., 6 id. 175; Griffin v. Griffin, 23 How. 183; Kaiser e. Kaiser, 16 Hun, 602; Morrell v. Morrell, 17 id. 324; Newell v. Newell, 9 Paige, 23.

1753. Certain proceedings regulated in action to annul marriage. In an action brought as prescribed in this article, a final judgment, annulling the marriage, shall not be rendered by default, for want of an appearance or pleading, or upon the trial of an issue, without proof of the facts, upon which the allegation of nullity is founded. And the declaration or confession of either party to the marriage is not alone sufficient as proof; but other satisfactory evidence of the facts must be produced. In such an action, except

where it is founded upon an allegation of the physical incapacity of one of the parties thereto, the court must, upon the application of either of the parties, make an order directing the trial, by a jury, of all the issues of fact; or it may, of its own motion, make an order directing the trial, by a jury, of one or more issues of fact; for which purpose, the questions to be tried must be prepared and settled as prescribed in section 970 of this act.

Id.. 35 and 36 in part; see, also, 2 R. S. 175, 45 (2 Edm. 181); also 1012 and 1229; also,1757, post; Blatt v. Rider, 47 How. Pr. 90; Montgomery v. Montgomery, 3 Barb. Ch. 132; Devenbaugh e. Devenbaugh, 5 Paige, 554; Rule 78; Morrell v. Morrell, 1 Barb. 322.

§ 1754. Judgment annulling a marriage; how far conclusive. A final judgment, annulling a marriage, rendered during the life time of both the parties, is conclusive evidence of the invalidity of the marriage in every court of record or not of record, in any action or special proceeding, civil or criminal. Such a judgment, rendered after the death of either party to the marriage, is conclusive only as against the parties to the action, and those claiming under them.

Id.. 37; Cropsy v. Ogden, 11 N. Y. 228; 2 Van Santv. Eq. Pr. 291; see Lincoln v. Lincoln, 6 Rob. 525; Bartlett v. Bartlett, 1 Clark's Ch. 460; Griffin v. Griffin, 47 N. Y. 134; North v. North, 1 Barb. Ch. 241; Brinkley v. Brinkley, 50 N. Y. 184.

1755. How next friend of infant, lunatic, etc., allowed to sue, etc.- An order, allowing a person to maintain an action, as the next friend of an infant, as prescribed in section 1744 of this act, or as the next friend of an idiot or lunatic, as prescribed in section 1748 of this act, may be granted by the court, in its discretion, without notice, or upon notice to such persons and in such a manner, as it deems proper. A motion to vacate such an order must be made at a term held by the judge who granted it, unless he is dead, out of office, or unable to hear it by reason of sickness or otherwise; or unless he expressly directs it to be heard at a term held by another judge. But where such an order has been granted, the court, to which application for final judgment is made, may dismiss the complaint, if justice so requires, although, in a like case, the party to the marriage, if plaintiff, would be entitled to judgment.

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