Anonymous

Although the plaintiff’s third wife was allowed to make herself a party to the present action, after the judgment in it was vacated and the second wife allowed to defend and to plead her rights as against either of the parties, and afterwards did so by her answer, that did not enlarge or extend the nature of plaintiff’s action for relief, as it was-presented by the complaint made by him. The action still continued to be the same, simply an action to secure a decree of nullity of the plaintiff’s second marriage. It was framed before the third marriage took place, and from the nature, of things could have no-possible relation to it. The object of the respondent’s answer was not the extension of the plaintiff’s action, so as to bring in controversy the validity of her own marriage, but to maintain the correctness of the plaintiff’s complaint, as to the unlawful nature of the marriage immediately preceding her own. This was for her own protection and the protection of her two children, not to supply the plaintiff with any legal pretense for repudiating her in disgrace, as he had her predecessor, by showing her marriage to be void for the same reason that allowed him to disregard the second wife. When either the respondent or the plaintiff himself succeeded in maintaining the validity of the second marriage, that was the end of her presence as a party in the controversy. That accomplished the real object for which she was allowed to answer, and so far protected and assured her rights to the plaintiff as her husband.

Whether her marriage should also be annulled, was a question in no way pub in issue by the parties. *176The plaintiff hadmhde no such claim by his complaint, and the respondent asked no relief of that description by her answer, and it is only where that relief is applied for in the manner prescribed in the statute, by one of the parties to the marriage, claimed to be unlawful on account of the existence of a former husband or wife of one of the parties, that the statute has provided for its allowance (3 Rev. Stat., 5 ed., 234, 235, §§ 36-48).

No such application was in any proper manner made in this action, and for that reason it was properly denied by the court, notwithstanding the conclusions contained in the report of the referee. The relief to be awarded in an equitable action as this was, must still be in accordance with the allegations as well as the proofs. That it appears from the proofs taken that the plaintiff may be entitled to it, is not sufficient when the pleadings have wholly omitted to present the matter for the action and adjudication of the court (Field v. Mayor, 2 Seld., 179 ; Kelsey v. Western, 2 Comst., 501, 506; Rome Exch. Bank v. Eames, 3 Abb. Ct. App. Dec., 83; S. C., 1 Keyes, 588). The plaintiff, whose good fortune has so far shielded him from the legal consequences of his repeated violations of the laws of the State, may yet be able to secure the right now denied him, but that would be a very inadequate reason for relieving him from the ordinary requirements the statute has prescribed for cases of this description. If he is to be relieved at all, and under the sanction of the judgment of a court of justice be' placed, in a situation where he may deceive and induce still another woman to marry him, it should only be by strictly bringing himself within all the provisions of the statute upon this subject, whether they relate to the grounds of the action itself or the forms to be observed in bringing them to the notice of the court. The case is one of strict right and not one which deserves to be promoted by any favorable interposition on the part of a court of justice. When neither the fear of *177the laws nor the duty of securing a reputable social position for his own children, has proved sufficient to restrain the plaintiff from the open violation of their prohibitions, he should not only prove, but in addition to that, present by his complaint in the mode prescribed for that purpose by the statute, the case which may entitle him to be set at liberty to indulge in a repetition of his former offenses. Until that shall be done, no injury whatever can result from subordinating his freedom to the obligations.he apparently regards as the inconvenient consequences of his third marriage.

The plaintiff is entitled to no such relief as he now demands in this action. It has neither been demanded by himself nor by his wife, as the statute requires such an application to be made. For that reason the order appealed from was strictly right, and it should, therefore, be affirmed, with costs.