Naumoff v. Naumoff , 291 N.Y.S. 326 ( 1936 )

Plaintiff is appealing from an order denying her motion to strike out a separate defense in defendant’s answer. The action is one for separation by a wife against her husband in which the complaint charges that defendant unlawfully abandoned plaintiff and refused to provide for her maintenance and support. The answer, after denying the material allegations of the complaint, except the marriage of the parties, alleged as a separate defense that at the time of such marriage the defendant was a college student of the age of nineteen years; that the marriage took place without his mother’s consent, his father being dead; that he was induced to enter into the marriage contract by fraud and representations that it was unnecessary to obtain his mother’s consent and that plaintiff knew the defendant was without means to support plaintiff, and that defendant is now without means to support himself, and that plaintiff is an able-bodied woman and capable of supporting herself. In addition the answer admits cohabitation subsequently to the marriage. Section 1139 of the Civil Practice Act provides that the marriage shall not be annulled where it appears that at any time before the commencement of an action the parties thereto voluntarily cohabited as husband and wife. Order reversed, on the law and facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Hill, P. J., Rhodes, McNamee, Crapser and Hefliernan, JJ., concur.