This cause is of. great importance to the community as well as to the parties, and needs to be reduced to strict accuracy arid treated scientifically in order to be. correctly decided.
1. The complaint is under section 1743 of the Code of Civil Procedure, which provides that an action may “ be maintained to procure a judgment declaring a marriage contract void, and annulling the marriage”, on the ground (among several .grounds) that at the time thereof the defendant had a husband or wife living. The complaint alleges only the marriage of the parties, viz., in 1905, and that at the time thereof'the defendant was the wife of John M. Hitchings, then living, and prays for a judgment declaring the marriage contract void, and annulling the marriage. This was accurate and scientific, for that Was all that the complaint should contain; nevertheless in the opinion concurred in by iriy associates it is stated as a point of weight against the plaintiff that the. “ complaint contains no allegation that the defendant had such knowledge ”, i. e., that her former husband was living when she entered irito marriage with the plaintiff; the false basis being thus assumed that the plain-. tiff had to allege and prove this fact, instead off the burden being on the defendant to plead and prove it in order to justify the marriage. It was not for the plaintiff to anticipate defenses that might be pleaded and allege facts in disproof of them. It was not for the plaintiff to allege in his complaint that the defendant knew that her 'former husband was living, or that she did not make diligént inquiry to find that he was alive. It was for the-defendant to plead and prove this, or any other defense she claimed to have.
This the answer fully recognizes. After denyirig the allegations of the complaint, except that of the marriage of the plaintiff ánd the defendant, .it pleads as a. defense that the said former husband of the defendant abandoned her in this state in 1896, and absented himself for more than five successive years thereafter before she was married by the plaintiff without .beitig known to the deferidari'ff *847to be living during that period; and that before her marriage to the plaintiff she made due and diligent search and inquiry to discover whether her said former husband was still living, and if so, his whereabouts, and that she failed to obtain such information, and believed him to be dead, and relying upon the statute in such case made and provided, and upon the advice of the' plaintiff, was married to the plaintiff. This is the whole answer..
The statute referred to in the defense is the Domestic Relations Law, section 3 of which provides that a marriage is “ absolutely void ” if contracted by a person who has a former husband or wife living, unless “ 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 case section 4 provides that such marriage is void only from the time its “ nullity ” is declared by a competent court.- It is therefore obvious that the new matter pleaded as a defense was not á defense, i. e., in and of itself it would not if true defeat the action, or be a bar to it, which is the test. It was only a partial defense and needed to be expressly pleaded as such to be available (Code Civ. Pro. § 508). In the case of a marriage which is “absolutely void ” the statute affords no defence or protection whatever; and in the' case of a voidable marriage, i. e., one void only from the time its nullity is declared, it also affords no defence, but only the protection of making the marriage lawful until the judgment of annulment, thereby keeping its offspring legitimate and preserving the rights accruing to the spouses while it existed. Instead of providing a defence to an action of annulment of a voidable marriage, the statute recognizes that such a marriage can be annulled, as the said section of the Code prescribes, and provides only that it shall be deemed to have been valid meanwhile, so as to save the legitimacy of its offspring and any rights which accrued thereunder. Upon such- annulment the prior marriage, which meanwhile was in suspense, becomes reinstated.
And where a marriage has been contracted under the conditions prescribed by the statute, and is therefore not void, but only voidable upon it being discovered that the absent spouse was in fact alive at the time it was contracted, each party thereto must promptly decide upon such discovery whether he or she will con*848tinue it or annul it, and an election to ratify or continue it manifested by a continuance of the conjugal life, or otherwise, would, I suppose, be irrevocable and constitute a defence to an action for an annulment by- either of the parties so electing, provided it were ' pleaded and proved (Terry v. Munger, 121 N. Y. 161). The parties are under no obligation to end the marriage. It is lawful, and they have the right to continue it until the returning spouse obtains a judgment nullifying it — if he can maintain such an action, as is assumed in Gall v. Gall (114 N. Y. 109). If such an election had been pleaded here in addition to and in conjunction with the matter which was pleaded as a defence, a good defence would have been pleaded, but as it is no defence was pleaded. ■ The case is therefore reduced to the issue raised by the denial in the answer of the allegations of the complaint, and having proved them the plaintiff was entitled to judgment.
The. said new matter alleged as a defence could only serve for a partial defence, if pleaded as such, on which to base a prayer by the defendant for relief that the court should also adjudge that the marriage was valid in its inception, and void only from the time of the judgment of nullity.
2. And if the case be now considered on the evidence, it will be found to be the same as it is on the pleadings. In order to prove the allegations of the complaint, the plaintiff’s counsel read from the testimony of the absent husband which was taken by commission. It was then in order for him to rest the plaintiff’s case, but he continued to read from the said commission testimony of the said husband which was very properly taken in anticipation to rebut any evidence that might be givén by the defendant to prove the said matter pleaded as a defence, and which showed that the witness had turned property over to his wife (the defendant) and their three children, that he has a brother who resides in the borough of Brooklyn (where the defendant resided with her said former husband and lias continued to reside) and practices law there; that the defendant has been well acquainted with Mm for years, and had professional relations with Mm; that the witness had at all times kept his said brother constantly informed of his whereabouts; and that he had also from time to time communicated *849with the eldest son of himself and the defendant, who, it further appears in the case, was living with his mother.
All of this was to show and did show that the defendant knew that her absent husband was alive when she contracted marriage with the plaintiff, or, which would be of the same legal effect, that she could have ascertained that fact by the diligent inquiry which she was obliged by law to make before contracting such marriage in order to justify it as valid in its inception under the statute already referred to (Matter of Tyler, 80 Hun, 406; Gall v. Gall, 114 N. Y. 109). The plaintiff in such an action is not required to make any such proof in order to. make out his case, but only in rebuttal when the defendant gives evidence of such due diligence under a defence raising such an issue ; but it was nevertheless proved by this evidence that the defendant could have ascertained the whereabouts of her husband and that he was alive by making the inquiry the law .required her to make of those who would naturally know where he was to justify her in marrying again, and more, that she must have known that her husband was alive, for that is the necessary inference from the fact that her son who lived with her received communications from his father regularly.
Instead of resting even at this point, the learned counsel for the plaintiff called him as a witness to show his “ good faith ” in contracting the marriage, as counsel said, although no one had attacked his good faith, and more than that, it was not in issue at all. Certainly no excuse for such a droll performance (not so unusual in our trial courts hereabouts of late years, however) may be found in a passing intimation of the learned and able trial Judge early in the trial that the relief prayed for in the complaint would not be granted if the marriage was had “ in good faith ”, whatever that loose phrase may mean. If the intimation was to be accepted, or taken seriously, it was then in order for the plaintiff to prove that the marriage was contracted in bad faith instead of good faith in order to get the judgment prayed for. But of course the remark of the learned trial Judge was inadvertent, and apparently grew out of the omission of the learned counsel for the plaintiff to fulfill his office by. carefully reading or explaining the law of the case to the court as laid down in the statute; for the only effect of the *850marriage having been contracted “ in good faith ” (even if it could be assumed that that meant after diligent fruitless inquiry to ascertain the whereabouts of the absent spouse and whether he were alike), would be to make it voidable instead of void, and have it adjudged void only from the time of the judgment of nullity to be given in the case. The singular notion that if a marriage was éntered into in good faith the court might refuse on that ground to nullify it seems to have permeated and perverted the trial, causing every one connected with it to lose the proper bearings. While so testifying the plaintiff stated that shortly after the marriage his children by his former wife and the defendant’s children objected to the plaintiff and defendant living together as husband and wife and threatened to bring her absent husband on to Brooklyn where they ■ all lived, and that the defendant being troubled thereby he said to her, “ Don’t worry, don’t bothér; if he does come on, as long as you behave yourself I will stick to you ”, and continued to live with her.
3. In this state of the case the court summarily stopped it of its own motion, and without giving the defendant opportunity to • introduce evidence refused to give judgment of annulment. Thereupon the court made and signed findings of fact not only (1) of the allegations of the complaint, which were proved, but (2) also that in 1896 the absent husband left the defendant and her children in the City of Brooklyn “ and went to parts unknown ” to her, and also that he absented himself for more than five years thereafter before the defendant entered into marriage with the plaintiff “ without being known to the defendant to be living during the said period ”, which were not-proved, and of all of which there was no evidence whatever. There was no evidence that'he went to .parts unknown to her, much less when he went, or that he was absent five years; and for aught that appears she abandoned him, in which case the statute could afford her no protection! Moreover, the learned trial Judge made no finding of diligence by the defendant to ascertain if her absent spouse were living before being married to the plaintiff, which was necessary to establish that the marriage was voidable instead of void, and which he could not find because there was no evidence of it; but on the contrary found at the plaintiff’s request, and in accordance with the said evidence of the absent husband, and as he was bound to find by the said evidence, that the *851defendant “ by reasonable inquiry and diligence could have ascertained through sources known to her ” that her absent husband was alive; and even went further and found, as the said evidence justified, yes, required, that she did know that he was alive — in apparent contradiction of the said loose finding for the defendant that he was absent for over five years “ without being known to the defendant to be living during the said period These findings of fact are followed by the inconsistent conclusion of law that the complaint be dismissed on the merits; the ground therefor stated in the last finding of fact being “ an equitable estoppel against the maintenance by him ” (the plaintiff) “ of any action to annul said marriage”, based, on the said promise of the plaintiff to stick to the defendant, and his continuance of cohabitation with her thereafter.
The conclusion is inconsistent, because the plaintiff could not elect to continue the marriage, or be estopped from seeking a judgment that it was void, for it was void ah initio — there was no marriage to continue. Being void ah initio, as was shown to be the fact by the said evidence for the plaintiff, and as would have had to be presumed in the absence of evidence by the defendant to the contrary, and as was established by the findings of fact, no defense of election, laches, or of estoppel, would lie, for to deny a plaintiff id such a case the usual judgment establishing that the marriage was void ah initio, might lead to the parties continuing to live in adultery and begetting bastards. Matrimonial actions are not equitable actions. They did not belong to chancery, but to the ecclesiastical courts, and a main ground on which they were disposed of was that of the conservation of private and public morality and the stability of society; and that remains' the rule. The equitable maxim of clean hands is not applicable.
And even if the marriage had been shown and decided by the court’s findings of fact to be voidable, an election by the plaintiff to continue it instead of ending and annulling it could not be found unless on due trial of such an issue it was shown that he was fully informed of all the facts necessary to the making of such an election, namely, the facts which would show such marriage to be voidable (Terry v. Munger, supra). But no such issue was presented by the answer, and no such issue was tried;
a. This is all met by the broad assertion in the opinion concurred *852in by my associates, that “ 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 ”, viz., that her husband was alive when she entered into the marriage with the plaintiff; and this is construed as a stipnlation of record of the facts the burden to plead and prove which as a partial defense was on the defendant in order to show that the marriage was voidable only, viz., that the defendant’s husband abandoned her,' was absent five years, and that she made^due inquiry of those who would naturally know to ascertain his whereabouts and whether he was alive and was unable to learn that he was alive. -
There was concededly no such statement or stipulation in the case. But in a colloquy between the court'and the counsel before any evidence was taken, the learned trial Judge asked the counsel for the plaintiff if he questioned that the marriage was “ in good faith ”, to which he answered in the. negative, whereupon counsel for the defendant said, “ On both sides”,. which met with no response from any one. Presumably counsel for the plaintiff understood he was speaking for the good faith of his client only ; but if it were to be assumed that he was not, and that a finding of fact could have been made by the learned trial Judge, on this colloquy in general terms that the marriage, was entered into in good faith by both parties, what effect could be given to such a loose finding ? Their good faith might have been based on* a misunderstanding of the law. There are a good many people who in good faith think they have the right to marry again after their spouses have abandoned them for five years, without the necessity of any inquiry as to whether they remain in the land of the living, and who act upon that notion. Such a general finding would ■ have been good for nothing. But not even that finding was made, nor any-fact found to justify the defendant in marrying, but on the contrary it was proved and found that the plaintiff did not make due inquiry, that if she had she would have learned that her absent spouse was alive, and that in fact she did know that he was alive, as we have seen ; so that not only is there no finding of fact on which to base a legal conclusion of good faith, whatever that may mean — that *853the marriage was not void but only voidable, if that be what is meant — but the findings made preclude such a legal conclusion. The findings are that the marriage was void.
But it is not necessary to enter into all of this, for at the end of the protracted colloquy the court said: “ Well, I will hear the evidence. There may be some question of law that may require me to take it under advisement and give it some study ”. This shows that no one understood that the facts had been stipulated, but on the contrary that the evidence would be taken ; and thereupon the plaintiff introduced evidence not only of-the facts he had to prove, but also showing that the defendant had not made inquiry, and in fact that she knew her absent spouse was alive. Why was such evidence offered and received, and why did the learned trial judge make findings in accordance with it, if a stipulation to the contrary of it had been made of record ?
But it is stated in the said opinion that the said findings were made by mistake, and should therefore be disregarded ;• and stranger yet that there was no evidence on which to make them,' whereas the case is the other way, viz., they are supported by evidence, while the findings for the defendant of abandonment on a certain date, absence of five years, etc., are wholly unsupported by ' evidence. It is submitted that we have no right to treat findings of a trial court in this way. The remark that if the trial Judge had noted on the margin opposite each request to find his disposition of it, in compliance “ with the provision of section 1023 of the Code of Civil Procedure ”, he would not have made the alleged mistake, is also inadvertent, for the said section does not contain that diminutive requirement, but only that the trial Judge note in the margin of the paper containing the requests the manner in which each has been disposed of. This may be clearly done by noting one or more requests as “ refused ” in the margin, and then writing in the margin, whether top, bottom or side, that all others are found, or vice versa, and this way is commonly used, and was used in this instance.
It is perfectly obvious that the learned trial Judge did just what he intended to do, namely, found the facts which make the marriage absolutely void, as the evidence required him to do, and then • gave judgment against the plaintiff on the theory of estoppel.
*854The plaintiff should not be ambushed or taken off his feet by surprise. He should not have been compelled to conjecture on the trial what course the court or opposing counsel was trying to pursue. A case has to be tried on issues tendered by the pleadings, Or in some way,, so- as to be known to the parties and understood by them. The issue on which the plaintiff was beaten summarily and unawares was not tendered by the answer or in any way, certainly never entered his mind, and, as is all too apparent, just as certainly his counsel never dreamed that he was confronted by or was trying such an issue. Fairness, in addition to all else which has been stated, requires that this judgment should be reversed and a new trial had.
b. Finally, the ease comes down to this:
On the evidence and the findings the marriage was absolutely Void and yet the plaintiff was beaten on the ground that he was estopped from maintaining the action. To this there are three obstacles : first,’n® such issue was presented to,the plaintiff by the .answer, nor by amendment or agreement,on the trial; and especially should .such a grave matter not be disposed of except by a fair trial of an issue raised of it; secondly, no estoppel was proved; and, third, no such rule of estoppel was applicable to the case, or, indeed, to any case to. obtain a judgment that a marriage is void alb initio by reason of a former spouse living, when it is found that the marriage was void; it only applies where the marriage is found to be voidable. .
. Judgment affirmed, with costs. '