The plaintiff seeks in this action to annul the marriage between himself and the defendant on the ground of fraudulent representations, and on the ground that at the time of such marriage, and of the commencement of the suit, her former husband, Willard Ide, was alive. It appears by the motion papers that Ide abandoned the defendant in the year 1859, since which time she claims to have had no knowledge of his existence. Her answer sets up that she made a statement to the plaintiff of the fact of the continuous absence of her former husband, and that he—the plaintiff— entered into matrimony with her with full knowledge of all the facts affecting their marital relations. In his complaint, the "plaintiff avers that since their separation he has paid and allowed defendant for her support the sum of $20 per week, and that he is ready and willing, and therein offers, to continue' the said payment and allowance during the pendency of the action. The defendant made a motion for alimony and allowance, which was denied, and she appeals.
*463The validity of defendant’s second marriage rests upon, the provision of the statute that if any person whose husband or wife shall have absented himself or herself for the space of five successive years without being known to be living during that time, shall marry, such marriage shall be void only when so declared by a court of competent jurisdiction.
The counsel for the appellant indulged in a criticism of the terms used by the learned judge in his decision of the motion. The judge holds, that “ belief in the death ” of her first husband- was essential to the validity of her second marriage. The counsel argued that the “ want of knowledge of her former husband being alive ” was the statutory test of validity. Without entering into any extended discussion of the technical refinements and distinctions between a belief in a fact and a knowledge of that fact, it is obvious that the statutory phrase “being known,” implies and- includes not only the thing known but also that which may be known. The decision complained of is susceptible of the construction that if the defendant had a belief that could and would have .ripened into a knowledge of her former husband’s existence during the five years immediately preceding her second.marriage, it was bad faith on her part to enter into that relation without employing some means to ascertain a fact so essential to its validity. The statute whose protection she invokes offers no premium for ignorance or want of ordinary precaution. The affidavit of Anson H. Brown shows that in the year 1874 said Ide lived with his father at Rahway, New Jersey, where defendant’s daughter formerly resided, and where her mother visited her; and although this place was of convenient and'easy access, yet no information is sought, nor inquiry made at the place and from the persons, where the knowledge, if desired, was most likely to be obtained. The whole transaction was certainly questionable.
In Bartlett v. Bartlett (Clarke Ch. 463), alimony was refused in a suit brought to annul a marriage, but North v. North (1 Barb. Ch. 241) is an authority for awarding it.
In Reeves v. Reeves, recently decided, this court, following the ruling in Brinkley v. Brinkley (50 N. Y. 184), *464held that alimony would not be allowed unless the existence of the marital relation be proven to the satisfaction of the court, for the right to alimony depends upon that relation.
Under the authority of that decision the order appealed from must be affirmed.
Robinson, J., concurred.
Order affirmed.