Romano v. Romano
| Decision Date | 16 May 1967 |
| Citation | 280 N.Y.S.2d 570,19 N.Y.2d 444,227 N.E.2d 389 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | , 227 N.E.2d 389 Lottie ROMANO, Appellant, v. Louis ROMANO, Respondent. |
Francis X. Murphy, Buffalo, for appellant.
No appearance for respondent.
The parties were married on Junuary 6, 1950. Plaintiff alleges her consent to the marriage was induced by fraudulent representations of defendant and she left him in August, 1950, promptly on discovery of the fraud. This action was not commenced, however, until November, 1964, more than 14 years after her discovery of the fraud. Defendant husband defaulted and has never appeared in the action.
The Appellate Division was of opinion the fraud had been sufficiently shown; but it affirmed the dismissal of the action by the court at Special Term on the ground the three-year period fixed for the commencement of an action to annul a marriage for fraud is a part of the cause of action itself and not merely a limitation to be established as a defense.
The statute creating the cause of action for annulment of marriage for fraud at the time this action was commenced is subdivision (e) of section 140 of the Domestic Relations Law, Consol.Laws, c. 14, which provides an 'action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by fraud may be maintained by the party whose consent was so obtained within the limitations of time for enforcing a civil remedy of the civil practice law and rules' (L.1962, ch. 313, as amd. by L.1963, ch. 458). CPLR 214, in turn, provides that an action to annul a marriage on the ground of fraud must be commenced within three years of the time plaintiff discovered the facts constituting the fraud.
For a very long period there was no statutory time limit attached to the institution of this action after the discovery of the fraud. The Code of Civil Procedure (§ 1750) provided an action to annul a marriage for fraud could be maintained 'at any time'. Its successor, the Civil Practice Act, continued this language in section 1139 until the enactment of chapter 257 of the Laws of 1955 which amended the Civil Practice Act provisions to state them in substantially the same form as the present Domestic Relations Law and CPLR provisions.
It may be noted that as to actions for annulment on the ground consent has been obtained by force or duress, subdivision (e) of section 140 of the Domestic Relations Law provides they may be 'maintained at any time' as distinguished from actions based on fraud. There is a discussion in the prevailing and dissenting opinions of the history of these statutory limitations in Campbell v. Campbell, 239 App.Div. 682, 268 N.Y.S. 789, affd. 264 N.Y. 616, 191 N.E. 592.
The important question raised by this case is, then, whether the time limit for the commencement of the action is an inherent part of the cause of action itself; or whether the time stated is to be looked at as providing a Statute of Limitations. The two concepts are different and they have a different procedural consequence.
If time is integral with the cause of action, the plaintiff must establish as part of his case that three years have not gone by since he discovered the fraud, and this whether or not the defendant defaults. If the time stated is merely a Statute of Limitations, the plaintiff has no obligation in respect of the three-year period which must be established affirmatively by a defendant who contests the action.
The general rule, which has rather wide acceptance, may be simply stated: If a statute creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause. If the cause was cognizable at common law or by other statute law, a statutory time limit is commonly taken as one of limitations and must be asserted by way of defense.
This statutory provision could be seen as a sort of condition precedent. but it is probably more accurately described as one of the 'Qualifications Annexed to Given Right', a concept developed in Corpus Juris Secundum (Vol. 53 Limitations of Actions § 1, subd. 2, par. (c), p. 904): 'A wide distinction exists between pure statutes of limitation and special statutory limitations qualifying a given right in which time is made an essence of the right created and the limitation is an inherent part of the statute or agreement out of which the right in question arises, so that there is no right of action whatever independent of the limitation; a lapse of the statutory period operates, therefore, to extinguish the right altogether.'
When we look again at the New York statute, subdivision (e) of section 140 of the Domestic Relations Law, we observe that it literally creates the cause of action for annulment of marriage for fraud by providing that such an action 'may be maintained' and this dependence on statutory right, in turn, traces back through its predecessor statutes.
The Chancellor, prior to the merger of his court with the Supreme Court in 1846, did take jurisdiction of equitable suits from time to time affecting the validity of marriages; but this was not the 'action for annulment' created by later statutes; and even in the exercise of this equitable jurisdiction, it was carefully kept within the statutes, as they developed, affecting time limits on the commencement of equitable suits. This is illustrated in two suits in Chancery.
In Wightman v. Wightman, 4 Johns.Ch. 343, Chancellor KENT took jurisdiction on a bill in equity to declare a marriage 'null and void, from the beginning' because of the insanity of the plaintiff, but his somewhat hesitant acceptance of jurisdiction was placed largely on the ground of lack of availability of any other tribunal to make such a declaration concerning a concededly void marriage.
In Montgomery v. Montgomery, 3 Barb.Ch. 132, Chancellor WALWORTH, addressing his opinion to a 'suit in equity' to annul a marriage on the ground of fraud, held that it must be commenced within six years of the discovery of the fraud under the general frame of the statute affecting the commencement of suits in equity based on fraud (p. 136) and, not shown to have complied with the statute in this respect, the suit was dismissed.
But the modern 'action to annul a marriage' has long been regarded in New York to be exactly what Judge VANN said it was in the opening words of his opinion in Stokes v....
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