It is perfectly clear from the facts found by the court below, and it is conceded on all hands that the marriage between plaintiff and defendant was void ab initio, because the plaintiff had, when he *62married defendant, another wife living, his marriage with whom had never been dissolved. (Dom. Rel. Law, § 3; Code Civ. Proc. § 1743.) The court below refused to enter a decree declaring the marriage void upon the ground “that plaintiff has not acted in good faith,” and that the marriage “ should not be annulled at the suit of the plaintiff,” thus applying to this purely statutory action a rule which is often applied in equitable actions where a plaintiff is denied affirmative relief when the appeal is to the judicial discretion of the court, because he has not come into court with clean hands.. The plaintiff does not ask that his marriage be annulled. Such relief would be appropriate when a marriage was valid when made, ■ but not to a case like the present when the marriage was never valid, but has always been void. And it will continue to be void whether or not a decree to that effect is entered in this action. I have said that this action is purely statutory, and so it is. It is true that even before the Bevised Statutes the Court of Chancery in this State in some cases sustained bills to declare the nullity of marriages independent of any statute conferring jurisdiction. But such cases were strictly limited to those in which the marriage was sought to be annulled for some cause for which chancery had power to cancel or avoid all contracts, such as lunacy and fraud, it’being considered' that the marriage contract was not excepted from the operation of tins general jurisdiction. But in all other cases the jurisdiction of. thb Court of Chancery of this State in actions for annulment or divorce, either on the ground of nullity or for some cause arising subsequent to marriage, has rested wholly upon the statutes. (Griffin v. Griffin, 47 N. Y. 134, 138.) The Domestic Delations Law,, after declaring that a marriage such as the court has found was entered into between these parties is absolutely void (§ 3), provides tliat “ Actions to annul a void or voidable marriage may be brought only as provided in the Code of Civil Procedure ” (§ 4). As has been remarked, the use of the word “ annul” with reference to a marriage void ab initio is not strictly accurate, for that which does not exist cannot be annulled. The Code (§ 1743) provides that “An action may also be maintained to procure a judgment declaring a marriage contract void and annulling the maniage for either of the following causes existing at the time of the marriage: * * *
2. That the former husband or wife of one of the parties was *63living, and that the marriage with the former husband or wife was then in force.” Section 1745 provides that “An action to annul a marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the life-time of the other, or by the former husband or wife.” Here is an express legislative ■ declaration that an action of this nature may be maintained by the party whose former husband or wife was living, as well as by the other party to the marriage contract, and it would be a waste of time to stop to argue that when the Code gives a party the right to maintain an action, the right to obtain a judgment, upon proof of the necessary facts, must follow. The latter part of section 1745 in no wise limits the right of the guilty party to maintain such an action, but deals solely with the legitimacy, custody and right to inherit of the children of such a void marriage, where the subsequent marriage was contracted by one of the parties in good faith and with the belief that the former husband or wife was dead.' As the parties to this action appear to have had no children, this portion of the section is irrelevant to the present discussion. Thus we have presented an absolutely void marriage, and an action to declare its invalidity brought by a party expressly authorized by statute to maintain such an action. Upon what ground then can a judgment be denied declaring such invalidity ? The only ground suggested is that because he acted, in contracting the second marriage, with knowledge of his incapacity to contract it, and in bad faith, the court, under the general principles of eqnity jurisprudence, should give him no aid, but leave him in the condition in which he has put himself. If the court was acting in such a case as this under its general equity jurisdiction, and if a decree declaring the marriage void would put the plaintiff in any better position than he is now in, there would be some force in the reason assigned for refusing a decree. But the court is not acting under its general equity powers. It is acting under jurisdiction conferred upon it by statute, and the plaintiff has brought himself precisely within the terms of the statute, hi or can the court, by any decree it makes, or by refusing a decree, change the status of the parties, or validate an absolutely void marriage. The plaintiff assumed no matrimonial obligations to the defendant by entering into it, and whenever an attempt is *64made to enforce any such obligations, he can relieve himself, decree or no decree, by showing the invalidity of the marriage. Such a decree would of course be no defense to a prosecution for bigamy, for in the very nature of things a bigamous marriage is always a void one, since the very definition of bigamy is the marriage with a second husband or wife while a former husband or wife is living. (Penal Code, § 298.) Whether or not a party who knowingly contracts a void and bigamous marriage' should be permitted to Maintain an action to have its invalidity judicially determined, is for tlie Legislature to decide, and not the courts. When the Legislature has enacted that he may maintain such an action, as I think it clearly has in this State, there is no ground for refusing to enter judgment for reásons which apply only to actions of purely equitable cognizance where the discretionary powers of a court of equity are invoked. In my opinion, upon the facts found, the plaintiff is entitled to a decree declaring 'his marriage with the defendant void, as it unquestionably is and has been from the beginning. The judgment appealed from should be reversed, and since all the facts necessary to support a judgment have been found by- the court below, a judgment should be rendered for the plaintiff.
Ingraham, J., concurred.
Judgment affirmed, with costs.