Herz v. Herz, 69 N.Y.S. 478

Herz v. Herz

69 N.Y.S. 478 | N.Y. Sup. Ct. | 1901

Gildersleeve, J.

Abraham Herz brings this action to annul his marriage to the defendant, Hellie Herz, on the ground that she had another husband living at the time of her marriage to the plaintiff. The defendant has not appeared in the action, but was called as a witness on the trial. The plaintiff swears that he was married to the defendant on the 11th of March, 1899. The defendant testifies as follows, viz.: “ Q. Were you married to one William DeMont? A. I was supposed to be; I don’t know for a fact whether it was legal or not. Q. When was it? A. Supposed to be February 14. Q. What year? A. 1895. Q. Where were you married? A. Hew York city. Q. After that did you live and cohabit with him for a time as husband and wife? A.. Hot very long. Q. For how long? A. About a month or two months. Q. Then did he leave you or you leave him? A. I left him. Q. You say you don’t know whether it was a marriage or not. Why do you doubt that? A. Because I have not seen any legal papers. Q. Do you know who performed the ceremony? A. I understand his name was Cotter, but I don’t know who he is. *126I never saw him before. Q. Was he a minister? A. I could not tell you. Q. Did he pretend to be a minister? A. He pretended to be. Q. And so far as you were concerned, you entered into the marriage in absolute good faith — you supposed he was a minister? A. I supposed it. Yes. Q. And he performed 'some kind of ceremony? A. Yes. Q. And after that you lived with this William DeMont for some short time? A. Yes. Q. A month or two? A. Yes. Q. Did you promise to be the wife of William DeMont in the presence of this man you supposed to-be a minister? A. Yes. . Q. And he promised to be your husband? A. Yes. Q. And you went through what you understood to be the ordinary ceremony of marriage? A. Yes. Q. When did you last see William DeMont A. It is now five years ago.” Joseph P. Lattimer is then called to the stand and testifies that he has known the plaintiff for about ten years, and the defendant about five years. He swears he also knows William DeMont and saw him about five months ago, when he had some conversation with the said DeMont. He is then examined as follows, viz.: “ Q. Did you know that DeMont was married to this Uellie, the defendant? A. I heard so. Q. They went by that reputation? A. They went around as man and wife; yes.” This is all the evidence as to the marriage between the defendant and William DeMont. Ho documentary proof of the marriage is given, nor any testimony as to the profession of the person who performed the ceremony, beyond the statement of the defendant that “ he pretended to be a minister.” However, assuming that there was not a religious marriage, the evidence is quite sufficient to sustain a finding that there was a “ common-law marriage ” between William DeMont and the defendant. There was an interchange between them of a mutual present consent, per verba de praesenti, to take each other as husband and'wife, which interchange took place in the presence of one who at least held himself out as a minister and who performed a marriage ceremony. This was followed by cohabitation as man and wife for a period of one or two m'Onths. Hnder these circumstances, I have no hesitation in holding that a legal marriage between DeMont and the defendant existed at the time of the marriage of the def endant to the plaintiff. The marriage of DeMont to the defendant took place on February 14, 1895; the defendant’s marriage to the plaintiff took place March 11, 1899. DeMont was alive certainly as late *127as five months ago, and there is no pretense of a di Force between DeMont and defendant or of an annulment of their marriage. It is very clear, therefore, that the plaintiff herein is entitled to a decree annulling his marriage to the defendant.

Judgment for plaintiff.