We concur with Mr. Justice Untermyer in so far as the third and fourth affirmative defenses are held insufficient. However, we are of the opinion that in an action for an annulment of marriage on the ground of fraud, a defense of laches may not be interposed. It is to be noted that section 1139 of the Civil Practice Act provides: “ An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by force, duress or fraud may be maintained at any time by the party whose consent was so obtained.”
The same section makes specific provision as follows: “ Such an action may also be maintained during the life-time of the other party by the parent or the guardian of the person of the party whose consent was so obtained, or by any relative of that party who has an interest to avoid the marriage.”
In other words, the section gives a cause of action to the parent, guardian or relative, which may be brought after the death of the party defrauded and during the life-time of “ the other party.”
In our opinion the provisions of this section make it quite evident that it was the intention of the Legislature, when this statute was enacted and incorporated in its present form in the Code of Civil Procedure, to ehminate all affirmative defenses based upon a limitation of time in an annulment action which is predicated upon the ground of fraud, with the exception of the one specifically enumerated therein, namely, that “ the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.” The section was included in the Civil Practice Act without any amendment or modification (§ 1139). It was the apparent purpose of the Legislature not only to protect the defrauded party by giving a right to annul, but also to protect any property rights of his or her relatives which may have been affected. If this were not so, it is difficult to comprehend why a relative of a defrauded party after his or her death, and “ during the fife-time of the other party,” is permitted to bring an action for an annulment, if the relative merely “ has an interest to avoid the marriage.”
It is contended that the plaintiff may be deprived of his right to annul his marriage because of laches. In view of the fact that a relative after his death, should defendant survive him, may bring the same action upon proof of an “ interest to avoid the marriage ” that argument would seem to be untenable. It cannot be gainsaid that the laches of this plaintiff would not be attributable to his relatives, and, consequently, would not constitute a defense to the action.
The construction which we deem must be placed upon the statute is that it precludes all affirmative defenses based upon a period of *684time, regardless of how they may be denominated, and limits the defendant to a general denial of the alleged fraud, and to the one affirmative defense stated in the section, namely, that “ the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.”
We, therefore, vote to reverse the order and grant the motion to strike out the second, third and fourth defenses.
Martin, O’Malley and Glennon, JJ., concur; Finch, P. J., and Untermyer, J., dissent and vote for modification by striking out the third and fourth defenses.