Heafey v. Heafey ( 1931 )

Hammer, J.

Motion for counsel fee is denied. Where the wife brings an action to annul the marriage the court may not award counsel fee or alimony. “ The principle * * * is that if the wife succeed, the decree nullifying the marriage relates back to the contract of marriage and the parties in that event are in the same position as if they never had been married; in other words, that the wife having elected to rescind the contract, can claim nothing under it.” (Farnham v. Farnham, 225 N. Y. 155, 159, citing Jones v. Brinsmade, 183 id. 258, and other cases.) Where the ground for annulment arises, as in this case, out of the bigamy of the husband, the first marriage being valid, the second marriage is void and there is no contract or status of marriage. The right to counsel fee or alimony is predicated upon a duty of the husband to the wife springing from the contract and status. There being none, a counsel fee may not be awarded. (Matter of Moncrief, 235 N. Y. 390.)