The defendant appeals from' an order striking out his answer as frivolous. The complaint sets out an action for divorce on the ground of adultery, hut the relief demanded is a separation from bed and board. It is apparent that the complaint does not state a cause of action for a separation under section 1762 of the Code of Civil Procedure, for the mere allegation that the defendant has been guilty of adultery has never been held to amount to an allegation of cruel and inhuman treatment of plaintiff by defendant, or of such conduct on the part of the defendant towards the plaintiff as may render it unsafe and improper for the former to cohabit with the latter-. If the defendant had not answered the plaintiff would have been limited to the relief demanded in her complaint (Code Civ. Proe. § 1207), and as that could not follow upon the allegation of the complaint she could have obtained no judgment, and the same result must follow if the answer remain stricken out. The defendant, however, insists upon his right to answer and his appeal raises the question of sufficiency of the answer which lie interposed. The 1st paragraph of the complaint alleges the marriage of the parties on or about January 12, 1891. The answer denies knowledge or information sufficient to form a belief as to this allegation. The court below considered that since the fact of a person’s marriage is one peculiarly within his own knowledge, lie cannot be heard to deny knowledge or information on the subject. Usually this is undoubtedly true, and yet it is conceivable that the circumstances attending an alleged marriage may have been such that a *840person alleged to have been married may honestly be unable to say whether he was married or not. Such a case the defendant undertakes to set forth in an affidavit read in opposition to plaintiff’s motion. He avers that he has no knowledge of any marriage ceremony ever having been entered into between the plaintiff and the defendant, except that the plaintiff has claimed that at one time the plaintiff and defendant were married, and he further avers that if such marriage was ever entered into, the same was entered into at a time when the defendant was either drugged or was so far under the influence of liquor as to be unable to understand the contracting of such marital relations and he has no knowledge thereof. He also avers that plaintiff and defendant have never cohabited as man and wife. We think that under this state of facts the defendant was justified in pleading lack of'knowledge or information sufficient to form a belief as to his marriage, and that his answer in that regard was not, under the circumstances, frivolous. The answer also denies plaintiff’s allegation that five years have not elapsed since the plaintiff discovered the fact of the alleged adultery as averred in the complaint, and affirmatively alleges that plaintiff did discover the fact of said alleged adultery more than five years before the commencement of the action. The complaint in its 3d paragraph alleges acts of adultery by defendant on the 16th and 24th days of September, 1903, and obviously the fact of the commission of these acts could not have been discovered more than five years before the commencement of the action since they are alleged to have occurred within five years before the action was commenced. The 4th paragraph, however, alleges that prior to and subsequent to the dates mentioned in paragraph 3 the defendant also committed adultery. The acts alleged in this paragraph are not limited as to time, and it may well be that Upon the trial the plaintiff might rely upon acts committed more than five years prior to the commencement of the action, and as to such acts the defense now under consideration would be far from frivolous.
It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to strike out denied, with ten dollars costs.
Ingraham, Laughlin and Clarke, JJ., concurred.