McCullen v. McCullen
147 N.Y.S. 1069
N.Y. App. Div.
1914
Check Treatment
Laughlin, J.:

This action was brought to have a marriage formally celebrated between the parties on the 28th day of February, 1907, annulled on thе ground that the defendant at the time of the celebration thereof had a husband living. On the 22d day of November, 1902, the defendant was marriеd in due form to one Fickbohn in the city and county of New York, and the contract of marriage, duly signed, witnessed and acknowledged, was duly filed in the office of the clerk of the city and county of New York within six months thereafter as required by section 11 of the former Domestic Relations Law in force at that time. (Gen. Laws, chap. 48 [Laws of 1896, chap. 272], § 11, as amd. by Laws of 1901, chap. 339.) After the marriage betwеen the parties hereto, and on the 31st day of August, 1908, in an action in the Supreme Court of this State, the defendant’s former marriage was duly annulled by judicial decree on the ground that the defendant herein was induced by fraud perpetrated upon her by said Fickbohn tо enter into said marriage contract. The learned trial court in this action proceeded upon *601the theory that the final decree in the former annulment action, although made and entered after the marriage between the plaintiff and defеndant, was a judicial determination ‍​‌‌​​‌​‌​‌​​‌‌​​​‌​​​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​​​​‌‌​‍that the defendant’s former marriage was void at its inception and was never binding upon her, and that she, therefore, was competent to marry the plaintiff.

If the annulment of the defendant’s former marriage had been upon the ground that it was absolutely' void, and not merely voidable, the decree could be sustained, for where a marriage is void, although the Legislature has authorized thе court in the interest of the public to enter a formal decree declaring it void, it ‍​‌‌​​‌​‌​‌​​‌‌​​​‌​​​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​​​​‌‌​‍is void without any decree of the court, аnd forms no obstacle to the right of either party to marry again. (Dom. Rel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], §§ 6, 7; Stein v. Dunne, 119 App. Div. 1; affd., 190 N. Y. 524; Price v. Price, 124 id. 589; Pettit v. Pettit, 105 App. Div. 312.) There is, however, a clear distinction made by our statutory law, and by the decisions thereunder, between void and voidable marriages. A marriage is absolutely void under our statute only when one of the parties has a husband or wife by a former marriage living, and in circumstances which it is not material to consider on this appeal. (Dom. Rel. Law of 1896, § 3; Dom. Rel. Law of 1909, § 6.) There is no evidence that the defendant had a husband living at the timе she married Fickbohn. The ‍​‌‌​​‌​‌​‌​​‌‌​​​‌​​​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​​​​‌‌​‍only question with respect to her former marriage appears to have been with reference to the representations made by her former husband to induce her to enter into it, and that is the sole ground upon which it was annulled. Our statutes authorize an action for the annulment of a marriage on the ground of fraud; but such marriages are classed by our statute as voidable, and it is expressly declared that they are void only from the time their nullity is declared by a court of competent jurisdiction. (Dom. Rel. Law of 1896, § 4; Dom. Rel. Law of 1909, § 7.) True it is provided in section 1754 of the Code of Civil Procedure that a final judgment annulling a marriage rendered during the lifetime of both parties “ is conclusive evidenсe of the invalidity of the marriage, in every court of record or not of record, in any action or special proceeding, civil or criminal; ” but that is *602merely a rule of evidence with respect to the effect of the decree as evidenсe. It was not intended thereby to declare a rule of law with respect to whether the marriage should be deemed invalid from thе date of its celebration or from the date of the decree, and those matters were left to be regulated by other stаtutory provisions, as they are regulated by the provisions of the Domestic Relations Law, to which reference has been mаde, whereby it appears that where the marriage was absolutely void there has been no attempt on the part of the Legislature to validate it for any period, and the decree of the court merely formally declares in the interests of sоciety what the law had prescribed in advance, namely, that the marriage was absolutely void, whereas, in the case of a voidable marriage, the Legislature deemed it wise likewise in the interests of society to recognize its validity ‍​‌‌​​‌​‌​‌​​‌‌​​​‌​​​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​​​​‌‌​‍until declared void by judiсial decree. It follows, therefore, that at the time of the celebration of the marriage between the parties hereto the defendant had a husband living and her former marriage was in full force and effect. She, therefore, could not then lawfully mаrry the plaintiff or another. The marriage between the plaintiff and the defendant was, therefore, absolutely void, and it could nоt be validated by ratification after defendant’s former marriage was annulled, although the parties could then have lawfully marriеd. Since by statute it is now required that a marriage shall be formally solemnized or the contract shall be in writing (Dom. Rel. Law of 1909, § 11, as amd. by Laws оf 1913, chap. 490; Id. §12), no new marriage could be inferred even if, as one of them testified, the parties cohabited as husband and wife after the rendition of the decree of annulment. (See Pettit v. Pettit, supra.)

There was no appearance in this action for the defendant. The plaintiff merely alleged the former marriage between the defendant and Fickbohn; that Fickbohn was living when the marriage betwеen the plaintiff and defendant was celebrated, and that the marriage between the defendant and Fickbohn had not been аnnulled or dissolved. All of these facts were sufficiently proved. I am of opinion that it was not necessary for the plaintiff to negative by allegation or proof the exceptions or provisos contained in section 6 of the Domestic Eela*603tions Law which would render inapplicable to the marriage between the defendant and Fickbohn the statutory provision declaring ‍​‌‌​​‌​‌​‌​​‌‌​​​‌​​​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​​​​‌‌​‍the marriage absolutely void where one of the contracting parties had a husband or wife by a former marriage living. (See Stein v. Dunne, supra.) The findings made by the trial court are sufficient to entitle the plaintiff to an interlocutory judgment for the annulment of the marriage.

It follows that thе judgment should be reversed and the decision modified by striking therefrom the conclusion of law and substituting therefor a conclusion to the еffect that the plaintiff is entitled to an interlocutory judgment for the annulment of the marriage in accordance with the provisions of section 1774 of the Code of Civil Procedure and directing the entry thereof.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment reversed and decision modified as indicated in opinion. Order to be settled on notice.