Cunningham v. Cunningham

128 N.Y.S. 104 | N.Y. Sup. Ct. | 1910

Greenbaum, J.

This is an undefended action to annul a marriage upon the ground that the plaintiff, at the time of the. marriage, was under the age of legal consent. The plaintiff was married to the defendant on the 3-0'th day QÍ January, 1910, at Westwood, D. J. She was domiciled at the time in the borough of Manhattan, city of Dew York, where she resided with her parents. Immediately after the marriage the plaintiff and defendant returned to the city of Dew York, where she resumed .her residence with her parents. The marriage was never consummated. The plaintiff seeks to have the -marriage annulled upon the ground that s-ueh marriage is voidable under the statutes of the State of Dew Jersey, and-also upon the further ground-that, the parties to such marriage being citizens of and domiciled in the State of Hew York, the courts of this State will annul such a marriage if an action for that purpose would lie under the laws of the State of Hew York. The statutes of "the State of New Jersey (2 Gen. Stat., p. 2001, § 1), offered in evidence, provide in substance that no justice of the peace, minister of the gospel or any other person having authority to join persons in marriage, shall marry any male under the age of twenty-one years or any female under the age of eighteen years, unless the parents of such minor shall he present and give consent thereto, or unless such minor shall produce a certificate of consent under the hand of such parents and shall prove such certificate by the oath or affirmation of at least one person of full age and discretion, who was present at the signing of such certificate. It is further provided that if a justice of the peace or other person authorized to solemnize any marriage shall suspect that any male or female applying to be married is under the age of twenty-one years or eighteen years, respectively, and no consent is produced, “he shall administer to such male or female or both, as the case may require, an oath or affirmation that such male is of the full age of twenty-one years and that such female is of the full age of eighteen years, which oath or affirmation shall be entered upon the back of the certificate of marriage required by law to be made by the person solemnizing such marriage and shall he his justification should the parties so married or cither of them deceive him as to his or her age.” In the case at bar no consent of the parents, either in person or by certificate, was obtained in compliance with this statutory provision. It will he noticed that this statute does not declare that non-compliance therewith shall invalidate the marriage. On the contrary, the language of the statute assumes the validity of the marriage, and the only effect of a failure to comply with its terms is to subject those who may perform marriages in violation of its provisions to the penalties consequent thereupon. The restrictions and safeguards provided for in the statute are obviously mere regulations intended as far as possible to prevent hasty and ill-considered marriages between persons of immature years. Such seems to be the construction placed upon it by the courts of New Jersey. Pearson v. Howey, 11 N. J. Law, 12, 20. In Wyckoff v. Boggs, 7 N. J. Law, 138, 139, in referring to the statute in question, it is said: “ Its provisions are -that no justice of the peace ox minister of the gospel shall marry a male person under the age o-f twenty-one years, unless the parent be present and consent to the marriage; or give a certificate in writing, under his hand; and any justice or minister marrying a minor, without consent r obtained according to the directions of this act/ shall forfeit $300, &c. It may be inferred, from the strictness of these provisions and magnitude of the penalty for transgressing them, that the Legislature deemed them to be of very high importance in regulating those marriage contracts, whose high -solemnities are never afterward revocable by the parties. Ho person will -doubt -the regard of the Legislature for public welfare in making these provisions who considers the misery created by marriages before reason or judgment are mature and the deep distress they often entail on parents, parties and families.” In 26 C-yc. 835, it is said: “ Unless the statute expressly declares a marriage contracted without the necessary consent to be -a nullity, it is to be construed as entirely directory in this respect, so -that the marriage will be valid, although the disobedience to the statute may entail penalties on the licensing or officiating authorities.” I -am, therefore, of -the opinion that no action may be maintained to annul this marriage in so far as its validity may depend upon the laws of the State of Hew Jersey. The further contention of the plaintiff, relying upon Mitchell v. Mitchell, 63 Misc. Rep. 580, that this court will assume to annul -a marriage entered into in another State or jurisdiction between citizens of this State, although lawful where made, is met by the ,contrary decision of Donohue v. Donohue, 63 Misc. Rep. 111, which to my mind expresses the true rule. The complaint is, therefore, dismissed upon the merits.

Complaint dismissed.