#### Emily A. Bliss et al., Plaintiffs, *v.*Byram L. Winters et al., Defendants.

(Supreme Court, New York Special Term,

January, 1899.)

(Pleading — Defendants cannot litigate, between themselves, independent cross-demands — Code Civ. Pro., § 521.

Where the complaint in an action by nephews and nieces alleges that one of the defendants has fraudulently induced an elderly woman, while he was acting as her attorney, to • give or will -.him all her property and also to marry him, and a demand is made that tlhe will and transfers be set aside, co-defendants, who have been served with the attorney’s answer, cannot properly demand or obtain the relief that the marriage in question be declared void, as, under section 521 of the Code of Civil Procedure, defendants cannot litigate, as between themselves, independent cross-demands not connected with the cause of action which is set forth in the complaint.

Motion to strike out part of answer.

Hobbs & Gifford, for motion.

Arnow *&*Cryer, opposed.

Gildersleeve, J.

The complaint alleges that the defendant Winters, being a man of thirty-five years of age and the legal adviser of one Annie Marie Hunt, a woman of over seventy years of age, of unsound mind and feeble physical health, and “ contriving and intending, by taking advantage of her weakness, physical infirmities and credulity, to get from her all of her property, induced or persuaded her to many him, and then, as her counselor and legal adviser, by fraud and undue influence, and knowing her to be of unsound mind and without sufficient capacity to make a will,” induced her to make a will leaving to him all her fortune, and also persuaded her by fraud and undue influence to convey to him real estate of great value, without consideration, and to give him a bill of sale of a large amount of personal property, without consideration; and the complaint demands that the will, the conveyance and the bill of sale be declared void, aind asks for an injunction and an accounting. The answer of the defendants Odell and B'ais*39ley admits each and every allegation of the complaint, except that said Annie Marie Hunt was married on September 25, 1894, to' the defendant Winters, as to which allegation they deny any knowledge or information sufficient to form a belief. They repeat and allege each and every allegation of the complaint as modified by this' denial, and they allege that the defendant Winters, knowing and taking advantage of the feeble mental and physical condition of the said Annie Marie Hunt, and of the fact that he was her legal adviser, by trick, fraud, device and scheme induced her to go through a form of marriage with him, notwithstanding the fact that he was only thirty-five years of age, while she was over seventyyears of age. The answer demands affirmative judgment that the said marriage between the defendant Winters and Annie Marie Hunt be declared void and of no effect, and also demands judgment for the relief prayed for in the complaint. The defendant Winters, being served with a copy of the answer under section 521 of the Code, makingthis motion that the allegation as to the fraudulent marriage and the prayer for its annulment be stricken out as redundant and irrelevant, and as constituting a new cause of action not connected with any cause of action stated in the complaint, and as not forming a proper issue to be tried between co-defendants in this action. It is well settled that, under the provisions of section 521 of the Code, defendants in an action are not authorized to litigate, as between themselves, independent cross-demands not connected with the cause of action set forth in the complaint. See New York Life Ins. & T. Co. v. Cuthbert, 87 Hun, 339; Smith v. Hilton, 50 id. 236. This validity of the alleged marriage between the defendant Winters and Annie Marie Hunt has no bearing upon the issues tendered by the plaintiffs’ complaint in this action. Should the plaintiffs succeed and obtain the relief demanded, when the time arrives for the distribution of the property, the validity of the marriage may be an important question. We may say, however, in passing, that the marriage was personal to the contracting parties, and, while the machinations to which defendant resorted to induce the marriage might have furnished grounds for complaint on the part of the wife, if *prima facie*legal, it is not within the province of the nephews and nieces to assail the contract upon the grounds urged. The circumstances of the marriage may be competent evidence upon the trial herein, although the validity of the marriage does not affect the issues. We do not think it can be said that the facts *40set forth in the complaint grew out of or resulted from the marriage. It may, however, be claimed and shown that it was one of the steps taken by defendant Winters to acquire the property in the manner-described in the complaint. I am of opinion that the allegations of the answer, to which objection is made, are not authorized by any section of the Code empowering the court to determine the ultimate rights of co-defendants as between themselves. The motion should be granted, with $10' to the defendant Winters.

Motion granted, with $10 to defendant Winters.