This is an action brought to procure a judicial decree annulling a marriage contracted by the parties, on the ground that the defendant had a husband living at the time of the second marriage. The trial court denied the plaintiff the relief sought,' and the appeal is from that judgment.
The essential facts are found in the decision by the trial court . and are that .the defendant was married on the 24th day of March, 1875, at the city of Philadelphia, to one John M. Hitchings, and they lived and cohabited together until the 26th day of November, 1896, when Hitchings left defendant and his children, and went to parts unknown; that the defendant continued to. live in the city of Brooklyn up to the present time; that on the 18th day of January, 1905, the defendant married the plaintiff in this State; that for more than five years prior to the second marriage the defendant had no knowledge that her former husband, Hitchings* was alive. The further facts,.so far as they are material to the disposition of this case, will be stated later in this opinion.
The record discloses that plaintiff’s counsel submitted to the trial court a series of requests to find, and among these requests was a proposed finding, “ that at the time of the marriage of defendant with plaintiff, defendant knew that her husband, John M. Hitchings, was alive.” Without Strictly complying with the provision of section 1023 of the Code of Civil Procedure, which requires the court to “ note, in the margin ” of such requests, “ the manner in which each proposition has Ijeen disposed of,” the trial court made a memoranduna at the bottom of the requests in these words: “ Pound, except as indicated.” ■ .
We are satisfied that the trial court must have overlooked the proposed finding to the effect that at the time of her marriage with the plaintiff the defendant knew her first husband, Hitchings, was living, and that had the trial court complied with the provisions of the Code by designating on the margin of the request its disposition it would not have fallen into the error of making inconsistent findings of fact upon this question.
*840We find, however, the record in this shape, and it is insisted by counsel for the appellant that the rule that where two findings are so wholly irreconcilable and inconsistent that it is impossible to harmonize them, it becomes the duty of the appellate court to accept the finding most favorable to the appellant, and he is entitled to' rely on them in aid of his appeal., (EIterman v. Hyman, 192. N. Y. 113; City of Buffalo v. D., .L. & W. R. R. Co., 190 id.. 84; Israel v. Manhattan R. Co., 158 id. 624.)
If this rule is to be applied to this case it necessitates a reversal of the judgment and the granting of a new trial, because, by section 3 of the Domestic Relations Law (Laws of 1896, chap. 272) it is provided that A marriage is absolutely void if contracted by a person whose husbcmd or wife by a former marriage is living, unless either. * * * 3. Such former husband or wife has absented himself or herself for five successive years then last past without being known to such person to be living during that time,” in which event by section 4 such “ a marriage is void from the time its nullity is decla/red by a court of competent jurisdiction.”
The question, therefore, is before us for decision in the first place,.whether the existence of apparently inconsistent findings on the question of the knowledge of the defendant that her former husband was alive or not, necessitates a reversal of this case. We think it does not, for the reason that the finding that she had knowledge is unsupported by any evidence in the case.
The plaintiff’s complaint contains no allegation that the defendant had such knowledge. .Upon the trial it was conceded at the very outset that there was no question'but what the marriage was contracted in good faith by both parties, and the case was tried.out,, on that theory without the introduction of evidence showing the defendant in fact had notice. It does not, it seems to us, now lie in the mouth of plaintiff’s couns.el to contend that the defendant in fact had notice that her former husband was alive, nor can he take advantage of the general rule enunciated in ' the cases above cited. . We are of the opinion that that rule only applies to cases where there has been a conflict in the evidence touching a fact found, and has no application to a case where'there is no evidence whatever to support one of the findings; and such finding was made contrary to the concessions made by counsel in open court.
*841' This court, on appeal, has the right to look into the evidence and review the facts, and having found a lack of evidence of knowledge on the defendant’s part, we do not think this court is required to reverse the judgment on the assumption that she had knowledge, but should stand on the finding of fact made in the formal decision, that she had no knowledge her first husband was alive.
In that event the statute declares that the second marriage is void . only “from the time its nullity is declared.”
The questions then presented are, can the court decline to give judgment annulling the second marriage? Is the statute mandatory, conferring on the plaintiff the right to the relief sought as a matter of strict legal right, or may the court, in the exercise of its equitable powers, inquire into the cireumstances^and deny the plaintiff judgment where the plaintiff does not come into court with clean hands, and to annul a marriage would be highIv inequitable ?
The second marriage, when entered into in good faitli. and in ° ’ . 10q; JimlXti, ignorance that the first husband was alive, is not void, but simply voidable. {Gall v. Gall, 144 N. Y. 109, 120; Tailor v. Taylor, 63 App. Div. 234.) It has been held in various cases where a marriage is not void, but voidable, that the court will deny the complainant relief where a party fails to come into court with clean hands. (Tait v. Tait, 3 Misc. Rep. 218 ; McCarron v. McCarron, 26 id. 158; Petit v. Petit, 45 id. 155; Kerrison v. Kerrison, 8 Abb. N. C. 444; Taylor v. Taylor, supra.)
In Taylor v. Taylor (63 App. Div. 231) a wife sued for a separation. The husband interposed the defense that at the time of the marriage of the parties the plaintiff had another husband living, who had absented himself for over five years, and was not dead, as he was supposed to be by her. He also interposed a counterclaim asking that his marriage to the plaintiff be annulled. It appeared he had liyed and cohabited with the plaintiff for several years after learning the facts. The court not only decreed a separation, but gave the plaintiff alimony, and refused to annul the second marriage. The Appellate Division affirmed the judgment. The judgment was affirmed by the Court .of Appeals (173 N. Y. 266), although it would appear the affirmance was chiefly on grounds not necessarily involving the question of an absolute right to a decree of annulment.
*842It may be urged that to refuse a judgment of annulment would be tantamount to recognizing the possibility of a person having two legal wives or two legal husbands at the same time.
Commenting on the force and effect of the statute relating to marriages contracted under circumstances such as in the case • now under consideration, the Court- of .Appeals said in the case of Gall v. Gall (114 N. Y. 120):. ‘‘ The section ■ quoted seems to be based upon the probability that, the absentee is dead, and is apparently designed to protect the person who, in good faith, acts upon the. statute, from evil results if the' absentee is actually living. The first marriage is suspended, or, as was held in Griffin v. Banks [24 How. Pr. 213], it is ‘ placed in abeyance,’ but it is not reinstated by the return of the absentee, because the second marriage becomes void only from the time that it is so declared by a Competent court. Otherwise both marriages would be in force at the same time and,, to this.extent,, .polygamy would be sanctioned by law. The first, marriage ceases to be binding until one of the three parties to the two marriages procures a decree pronouncing the second marriage void.” •
May .not equitable, considerations be presented which would require the court, in .the interest of decency and fair dealing, to deny a .party the relief of a decree of annulment ? In the case now under consideration the trial court found that after the parties to this action had lived .together as husband and wife for about three months, the plaintiff heard that the defendant’s former husband was. living, but did not know where he was or could be located, which information plaintiff conveyed to the defendant; whereupon defendant asked,plaintiff what, he was going to do, to which he replied, “ Don’t, worry, don’t bother, if he does come o.n, as long as you behave yourself I will stick to' you,” .And said plaintiff expressly promised and agreed to and with the' defendant that he would.protect and.defend her,in everything that came up in regard to théir marriage; "that they should continue the .honorable relations of husband and. wife so long as she behaved herself, and that he would not, so long , as she faithfully discharged her duties and obligations as ,his wife, bring any action to annul their said marriage, and would not, so long as she complied with said condition,, become a moving party to attack or question the validity of their said *843marriage; that, thereafter the plain tiff continued to. live, and cohabit with the defendant as his wife, and continued to present her in public- as his wife, received his friends and everybody at his house in the same way as lie did before he. heard the report or rumor that her former husband was alive, and their relations as husband and wife continued down to and including the day of the service upon said defendant of the, summons in this action.
The court" further finds that the defendant did not, by actor omission on her part, fail to comply- with the conditions imposed. It thus appears that for more than two years after knowledge of the facts the parties continued to sustain toward each other the relation of husband and wife.
Such a relation ,we cannot characterize as meretricious and legally immoral, because the statute expressly declares the second marriage shall be void only “from the time its nullity is declared.” The decree of nullity does not relate back and render the marriage void from the time of its contraction, but its nullity dates only from the date of the decree.
It would seem that when the plaintiff became apprised of the fact that the defendant’s husband was alive, after a reasonable opportunity to investigate the facts and circumstances, he was called upon to act, and to act with reasonable expedition and decision; that he should, without unnecessary delay, have decided upon the course to be pursued.; that the plaintiff was not at liberty to play fast and loose with the defendant and the relationship created by the second marriage, and that it was unconscionable for him to induce the defendant, under promise of protection, to continue to cohabit with him as his wife, only at a later day to repudiate that relationship and bring an action to annul the marriage. His conduct as found was such as appeals to us as worthy of condemnation, and we believe we transgress no principles of law or equity in refusing the relief asked by him.
For these reasons we think the judgment should be affirmed.
.Milleb, J.:I understand that we are agreed upon the proposition that, if the second marriage was not void until and only from the time its nullity should be declared by- a competent court, the plaintiff’s elec*844tion after knowledge of the facts to continue it, manifested by a continuance of the marriage relation, would defeat his light to a decree. We have before us no question of pleading for the reason that the sufficiency of the answer was not challenged on the trial, and had the point been made it could easily have been obviated by an amendment.
To defeat the plaintiff’s right to a decree it was necessary for the defendant to establish two ultimate facts : (a) That her marriage to the plaintiff was contracted in good faith on her part, i. e., that her former husband had absented himself for five successive years then last past without being known to her, after diligent inquiry, to be living during the time (Dom. Rel. Law [Laws of 1896, chap. 272], § 3; Matter of Tyler, 80 Hun, 406; Gall v. Gall, 114 N. Y. 109) ; (h) that after knowledge of the facts the plaintiff elected to and did continue the marriage relation. The former was conceded, the latter was established by the testimony of the-plaintiff himself.
At the outset of the trial the positions óf the parties were stated by their respective counsel, and it is obvious from the colloquy which occurred that the court wisely undertook to narrow the issues to what was actually disputed. For that purpose the plaintiff’s counsel was asked whether there was any question but what the marriage was had in good faith, to which he replied: “ Hone whatever.” I do not think the learned trial court or the counsel had any doubt of the precise meaning in which the phrase “in good faith ” was used, or that we need have any doubt on the subject. The Court of Appeals had said what was necessary to constitute good faith in such a case as this (Gall v. Gall, supra), and obviously the learned trial judge used the expression in the sense in which Judge Vann used.it in that case. The plaintiff’s counsel did not misunderstand what he had conceded, nor at any stage of the trial seek to retract it; his position, plainly stated, was that, upon proof that the former husband was living, it was the duty of the court in every case to declare the marriage void. That concession took out of the case the issue as to the good faith of the second marriage and all that was involved in that issue, i. e., the fact of the former husband having absented himself for five successive years then last past, without being known to, the. defendant to be living during that time, and the fact of the making by her of diligent, but *845unsuccessful inquiry to ascertain his whereabouts and whether he was alive; and when the plaintiff’s evidence was in, the other fact, which, the defendant had to establish, had been sworn to by the plaintiff himself; hence there was no need to go into the defendant’s case—it was already established — and the court properly decided the case forthwith, putting the decision upon the distinct ground that the marriage was contracted in good faith and that the plaintiff lived with the defendant two years after finding out that her former husband was living. Then was the time, if ever, for the plaintiff to raise the point that that defense was not pleaded.
It is true that the deposition of the former husband was put in evidence to prove that he was still alive. That deposition contained statements which, standing alone and not disproved, would justify and perhaps require a finding that the defendant did not make diligent inquiry to ascertain the whereabouts of her former husband, but it was plainly not offered on any such issue, for, as we have seen, that issue had already been stipulated out of the case. Hence the defendant was not required to offer evidence on the subject and was not permitted to by the court.
The .plaintiff should not be permitted to shift his position on appeal and assert a fact directly contrary to what he stipulated it to be on the trial. I agree with Hr. Justice Woodward that the rule respecting inconsistent findings can have no application to the situation disclosed by this record. There is a finding based on the conceded facts, and obviously the court never intended to make a finding inconsistent therewith. Whatever be the effect of the words “ Found,, except as indicated,” noted at the bottom of the plaintiff’s requests to find, this appeal should be disposed of on the theory that the conceded facts found by the court were established. And I think we may ignore the finding, inadvertently made, if indeed it be held to have been made at all, inconsistent with said conceded facts. It is true that the court did not specifically and in terms find that the defendant had made diligent inquiry to learn the whereabouts of her former husband, and whether he was alive, the finding made being in the language of the statute, but as we have seen, the stipulation that the marriage was contracted in good faith involved a concession that diligent inquiry was made (Gall v. Gall, supra), and if a further finding is needed it may be supplied; *846indeed the Court of Appeals will assume that it was made. (Ostrander v. State of New York, 192 N. Y. 415.)
Hooker and Rich, JJ., concurred in both opinions. Gaynor, J., read for reversal.