82 A.D. 335 | N.Y. App. Div. | 1903
The parties were married in this State on the 10th day of April, 1902. The age of legal consent at that time for both males and females was eighteen years. (Dom. Rel. Law [Laws of 1896, chap. 272], § 4.) The plaintiff was seventeen years of age at the time of the marriage and she claims the right to have the marriage annulled by virtue of the provisions of section 1743 of the Code of Civil Procedure. She has made the necessary proof under that section, if it be applicable, to sustain, the judgment.
The appellant contends that the only authority for annulling the marriage on the application of the wife on the ground that she was under the age of legal consent is contained in section 1742 of the Code of Civil Procedure, and that section 1743 was only designed
When, part 2 of the .Code of Civil Procedure was enacted (Laws of 1880, chap. 178), as has béen seen, the age of legal consent rested upon the common law, and section 1743, authorizing the annulment of .a marriage where one or both of the parties had not attained the age-of legal consent, as originally enacted, had reference to the common-law rule. Thus at that time in enacting section 1742 authorizing an annulment of the marriage at the suit of the wife, where she had not. attained the age of fourteen years-at the time of the marriage, the Legislature'continued the additional privilege or right conferred upon the wife by the act of 1841. Subsequently the Penal Code was adopted. (Laws of 1881, chap. 676.) Section 282 thereof was a snbstantialre-enactmént of. said section 26, title 2, chapter 1, part 4, Eevised Statutes, (2 E. S. 664, § 26), except that the age under which the taking- of a. female in marriage without the consent of her parents or other legal custodian of her person, was changed from fourteen to sixteen years. This was amended, changing the age to eighteen years in 1895; (Laws-of 1895, chap. 460.) In 1887, section 1742 of the Code of Civil Procedure was amended, further enlarging the right or special privilege
It follows, therefore, that the judgment should be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.
Bound with Laws of 1839.— [Rep.