#### HOPPER v. HOPPER.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

Marriage—Action to Annul—Allowance op Attorney’s Fees.

Attorney’s fees will not be allowed defendant in an action by a man to declare void his marriage with defendant, on the ground that the former husband was .then living, and that the marriage with the former husband was then in force, the fact that he was living, and that the former marriage was in force, and knowledge of the parties that the former husband was living being admitted, and the only issue being as to the good faith of the parties and the belief of the one or the other that they had the right to marry.

Appeal from special term, Monroe county.

Action by Joseph W. Hopper against Emma B. Hopper to declare void a marriage contract. From an order directing plaintiff to defendant’s attorneys $75 as counsel fees, and for the expense of conducting the defense, plaintiff appeals.

Reversed.

Argued before LEWIS, BRADLEY, WARD, and ADAMS, JJ.

DeMerville Page, for appellant.

Dolson & Dolson, for respondent.

*611BRADLEY, J.

The action was brought to procure a judgment declaring void the marriage contract of the parties, for the alleged reason that the former husband of the defendant then was and is living, and that the marriage with such former husband was then and is in force. Code Civ. Proc. § 1743. Those facts are alleged, and are admitted by the parties in their pleadings; and the only issues presented by the complaint and answer raise the question of good faith of the parties, respectively, in contracting the marriage. The plaintiff alleges good faith on his part. This is denied by the answer of the defendant, who alleges that she acted in good faith, and in the belief that she had the right to enter into the marriage contract with the plaintiff. This assertion of good faith was not founded upon the belief that her former husband was dead. Both the plaintiff and the defendant, at the time of their marriage, knew that he was still living. The case therefore does not come within the provisions of section 1745 of the Code. The parties are not husband and wife, and no judicial declaration is necessary to render the marriage ineffectual and invalid. The answer alleges no defense in support of that relation of the defendant, nor any facts which, if established, will deny to the court the power to direct the judgment sought by the plaintiff. The most that can be urged for them is that the good faith of the defendant and the want of it on the part of the plaintiff may furnish a reason to enable and induce the court, in the exercise of its discretion, to deny any relief to the plaintiff. In support of that view is cited Kerrison v. Kerrison, 8 Abb. N. C. 444. The defendant in that case had been divorced in an action by his former wife on the charge of adultery, and thus, by the judgment and the statute, was denied the right to marry during her life. He nevertheless went with the plaintiff into the state of Hew Jersey, and, there being married, they returned to this state. The view of the court was that the marriage, having taken place outside of this state, was valid here, notwithstanding the statute prohibiting the marriage within the time there mentioned of a person divorced for adultery, and declaring a marriage in violation of its provisions void. 2 Rev. St. 139, § 5; Laws 1879, c. 321; Code Civ. Proc. § 1761. The same doctrine was applied in Van Voorhis v. Brintnall, 86 N. Y. 18, where it was held that the inhibition by the statute of remarriage in such a case was in the nature of a penalty; and that, as the marriage was valid in the state where it was contracted, it was not void within this state on their return to it. And in that respect Marshall v. Marshall, 2 Hun, 238, was overruled. The doctrine of those cases is not applicable to the present one. The parties resided and were married in this state. Ho judgment of dissolution of the marriage contract between the defendant and her former husband had been obtained by either of them. The marriage of the parties to this action was absolutely void, and the fact so appears by the pleadings.

Óur attention is called to no case where the facts indisputably so appeared, in which an allowance of either alimony or counsel fee has been allowed pendente lite. In O’Dea v. O’Dea, 31 Hun, 441, the defendant, in her answer, alleged matters of defense, and there

*612were material issues to be tried. This more fully appears in the report of the case on review. 101 N. Y. 23, 4 N. E. 110. In Anon., 15 Abb. Frac. (N. S.) 311, material matter of defense was alleged, and in that connection the denial of certain allegations of the complaint not essential to the action was deemed to have been properly alleged in the answer as bearing upon the question of costs, etc. The theory upon which advances are directed to be made during the pendency of an action for divorce or for the annulment of the marriage contract, as well as for alimony, is that the person seeking them stands in the relation of wife, and to enable her to obtain such relief, or to defend in that relation. Collins v. Collins, 71 N. Y. 269. That is not the situation of the defendant, She, confessedly, is not the wife of the plaintiff. 2tor does she defend as such. Her status in that respect will not be affected by the result of the action, whatever it may be. The defendant has no opportunity, upon the facts admitted and alleged by her answer, to claim that she is the wife of the plaintiff, and therefore, in the legal sense, her relation to the action, for the purposes now under consideration, cannot be treated as that of wife of the plaintiff. If, however, for any cause, the court may, in its discretion, deny judgment to the plaintiff, it is unnecessary now to consider the consequences as to costs in favor of the defendant which may follow. In Marshall v. Marshall, upon the conclusion reached that the marriage there in question was absolutely void, the court, treating the plaintiff as guilty of contempt in contracting it, denied the relief sought by him. And in the Kerri-son Case the view of the court was that, if the marriage there in question was void, the plaintiff was not entitled to relief. That question, in its application to the present or any case where the marriage is, void, does not necessarily arise here, and is not considered.on this review. In Appleton v. Warner, 51 Barb. 270, where the relief, sought was a decree declaring the marriage void, -the court held that, as it so appeared, the defendant could not be treated as the wife of the plaintiff, and that he was under no obligation to pay her counsel, and reversed the order granting the defendant alimony and a sum as counsel fee. In view of the undisputed facts in the present case, there seems to be no reasonable support for the allowance.

The order appealed from should be reversed. All concur.