Kantor v. Cohn

181 A.D. 400 | N.Y. App. Div. | 1918

Putnam, J.:

The man Rubin and his wife, coming in middle life to this country, naturally kept to the habits and ceremonies sanctioned by rabbinical authority. (See, Matter of Spondre, 98 Misc. Rep. 524.) The power to give a “ get,” or bill of divorce, though surrounded with forms to prevent hasty or capricious separations, was regarded as a matter of religious observance. Jewish writers required that the rabbi should be satisfied that there were sufficient grounds. He must, however, first seek to reconcile the parties. The rabbi’s efforts for conciliation having been met by her refusal, he delivered to her the “ get,” which upon her marriage she gave to Kantor as a credential attesting her freedom to remarry. Such a “ get ” closes with the solemn words, in Hebrew:

“ And this shall be unto thee, from me, a bill of divorce, a letter of freedom, and. a document of dismission, according to the law of Moses and Israel.” (Mielziner Jewish Law of Divorce, 129; Amram Jewish Law of Divorce, 158.)

By Hebrew law, the woman thus freed by divorce could not marry for three months thereafter. (Amram Jewish Law of Divorce, 108.) In 1791, Lord Kenton received testimony of a Jewess (without producing any document) proving a divorce more judaico in Leghorn, and thus established the validity of her own divorce. (Ganer v. Lady Lanesborough, Peake N; P. 17.)

Plaintiff’s reliance on this divorce appears from her remarriage and subsequent married life with Kantor, by whom she had two .children, aged at the time of the trial respectively twenty and seventeen years. Nevertheless, on the death of Rubin in Connecticut, plaintiff though still living with Kantor as his wife, took proceedings in the Connecticut Probate Court to have the administrator of Rubin’s estate removed and letters issued to her as the lawful widow. This was denied, because of the Connecticut statute as to the effect of an abandonment by either husband or wife if continued until the other’s death. (Kantor v. Bloom, 90 Conn. 210.)

We agree with the learned trial court that plaintiff is now estopped to assert dower claims in the lands that are the subject of her action. Such estoppel is upon the combined grounds (a) the rabbinical divorce, wherein she was the complainant; (b) her knowledge of Rubin’s remarriage with her acquiescence; (c) her own remarriage, followed by twenty-three years consortium with Kantor.

Silence may amount to negligence to the injury of another, if there be a duty to speak. Plaintiff herself asserted and obtained her marital freedom according to Jewish custom. By that means she entered into consortium with Kantor. Since Rubin’s death has removed the impediment, that relation may eventually give her a legal status as Kantor’s widow. She cannot in fairness now make the inconsistent claim of dower as widow of Rubin; still more is she estopped as to bona fide purchasers, who took lands from Rubin, relying on the release of dower given by plaintiff’s successor as Rubin’s wife. (De France v. Johnson, 26 Fed. Rep. 891; Wright Lumber Co. v. McCord, 145 Wis. 93; Wilson v. Craig, 175 Mo. 362; Richardson’s Estate, 132 Penn. St. 292; Gilbert v. Reynolds, 51 111. 513; Hilton v. Sloan, 37 Utah, 359.)

Even where a wife in Massachusetts took by default a decree of divorce without jurisdiction having been acquired over the defendant, such voidable decree estopped her from claiming dower rights in New York. (Starbuck v. Starbuck, 173 N. Y. 503.) True, this plaintiff made no personal representations by speech or writing. But the solemn acts performed under the sanction of Jewish communal usage, followed by a daily conduct consistent with such renunciation for twenty-three years, debar this divorcee from now undoing her renunciation of her husband, and casting dishonor on her later family, and clouding the parentage of innocent children.

Her dower claims, now sought to be revived, might work damage to innocent purchasers in good faith who bought in reliance upon Rubin’s deed joined in by the wife Lena. Rubin held her out, so that she was recognized as a lawful wife.

In view of Jewish custom, plaintiff may be deemed to have contemplated that very situation. The “ get ” meant freedom to Rubin as well as to herself. It is more than mere silence and acquiescence. As one is deemed to intend the natural consequence of his acts, plaintiff is to be regarded as acting with an intent and purpose to let Rubin remarry, and thereby to mislead strangers to whom he might sell land. Hence, after such sales, she cannot rightly assert a dower right thus concealed, as against bona fide purchasers misled, as she must have expected they would be misled, because of her conduct. And defendant stands in the shoes of the original grantees from Rubin, and need not show his personal reliance upon Rubin’s apparent marital status. (Wood v. Chapin, 13 N. Y. 509; Lacustrine Fertilizer Co. v. L. G. & Fer. Co., 82 id. 476, 483.)

The judgment dismissing the complaint on the merits should, therefore, be affirmed, with costs.

Jenks, P. J., Thomas, Blackmae and Kelly, JJ., concurred.

Judgment dismissing complaint on the merits affirmed, with costs.