138 N.Y.S. 602 | N.Y. App. Div. | 1912
This is an action to annul a marriage. The complaint alleged that on the 18th day of March, 1911, plaintiff and defendant were duly married in the borough of Manhattan, city of Hew York, State of Hew York; upon information and belief that at the time of the marriage of plaintiff and defendant, the defendant had a wife living, and that no decree of divorce had been made or entered annulling or dissolving said former marriage, and that said former marriage was in existence at the time of the marriage between plaintiff and defendant; that there is no issue of this marriage.
‘ The summons and complaint were served ón defendant personally on the 11th day of December, 1911. Ho appearance, answer or demurrer was served. . The case came on for trial before the Special Term as an undefended action.
The plaintiff testified to a ceremonial marriage with the defendant on March 18, 1911, and that she lived with the defendant from the marriage until about the first of May; that
Plaintiff thereupon called as a witness one Anna K. Brown who testified that she was married to the defendant on the 15th day of May, 1893, and that she had lived with him until 1902, and that she had seen him many times since. She gave evidence tending to show that the plaintiff knew of her marriage to the defendant.
The court found “that the plaintiff was well aware of the existence of the former marriage and that she knew and had good grounds for knowing that the defendant’s first wife was still alive;” and, as a conclusion of law, “thatthe plaintiff is not entitled to a decree of divorce annulling the marriage, and ■ that the complaint should be dismissed,” and, therefore, directed judgment accordingly. .
The learned court based its decision upon Berry v. Berry (130 App. Div. 53). That was an action to annul a marriage, brought by the husband, upon the ground that at the time of the marriage he had a legal wife, to whom he had been previously married, living and who was still alive. In that case this court said: “ The question here presented is whether the conclusions of law are supported by the findings of fact, whether the husband who contracted a void marriage in bad faith can maintain an action to relieve himself of the consequences of said marriage by a judgment of the court annulling the same, and so obtain the benefit of the provisions of section 1754 of the Code of Civil Procedure providing that ‘A final judgment annulling a marriage rendered during the lifetime of both the parties, is conclusive evidence of the invalidity of the' marriage in every court of record or not of record, in any action or special proceeding, civil or criminal.’ ” After an examination of the statutes and cases cited, we proceeded: “The Supreme Court is vested with the powers of the Court of Chancery. I take it, therefore, that the doctrine is still true that while its entire jurisdiction in matrimonial causes is conferred and regulated by statute, yet in the exercise of that jurisdiction, unless controlled by positive enactment, it proceeds as a court
A vigorous dissenting opinion was written by Mr. Justice Scott, with whom Mr. Justice Ingraham concurred. That opinion stated: “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 the 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 reasons 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.”
Berry v. Berry (supra) was decided January 8, 1909. On November 27, 1908, the Appellate Division of the Second Department handed down a decision in Stokes v. Stokes (128 App. Div. 838). That was an action to annul a marriage, brought by the husband on the ground that the defendant had a husband living at the time of the second marriage. A divided court denied the relief prayed, saying: “The questions then presented are, can the court decline to give judgment annulling the second marriage ? Is the statute mandatory, conferring on the plaintiff the right to the relief sought as a matter of strict legal right, or may the. court, in the exercise of its equitable powers, inquire into the circumstances, and deny the plaintiff judgment where the plaintiff does not come into court with clean hands, and to annul a marriage would be highly
That case was appealed to the Court of Appeals (198 N. Y. 301), decided April 26, 1910, and of course subsequent to the decision of this court in Berry v. Berry (supra). Vann, J., said: “An action to annul a marriage is purely statutory and a brief reference.to the statutes governing the subject is a proper foundation for a review of the questions presented by this appeal. * * * The marriage between the parties to this action was either void or voidable, for the first husband of the defendant was living and undivorced when it was contracted. ' If she knew, or should have known the fact at that time, it was absolutely void with no binding force upon either party, and their relations were not sanctioned by law, whether they realized it or not. If she did not then know it within the true meaning of the statute and she married the second time in the full belief, after due observance of the five years’ provision, that her first husband was dead, the marriage was not void but voidable, binding upon both parties thereto until action by the court, and their relation was that of honorable marriage, with no stain on the good name of either and no blight on the status of any child they might have. The theory of the complaint is that the marriage between the parties was absolutely void, for it alleges that the former marriage was in force when the second marriage was contracted. This is the logical and proper form of pleading to attack the integrity of the second marriage and to-procure an adjudication that it was void. The answer denies any knowledge or information sufficient to form a. belief that the former husband of the defendant was alive when she married the plaintiff and, upon information and belief, denies that the former marriage was then in force. It is alleged as a separate defense that five years had
As upon this record the marriage was ■ void and not merely voidable, the plaintiff was entitled to a decree declaring it void.
The judgment appealed from should, therefore, be reversed, and, as upon the findings of fact plaintiff is entitled to a decree, there is no necessity for a new trial, and judgment may be entered as prayed, with costs. ■
Ingraham, P. J., McLaughlin and Dowling, JJ., concurred; Scott, J., concurred on dissenting opinion in Berry v. Berry (130 App. Div. 53).
Judgment reversed and judgment directed to be entered as prayed, with costs. Order to be settled on notice.