97 Misc. 136 | N.Y. Sup. Ct. | 1916
This action for the annulment of a marriage presents what seems to be a novel question. The parties were married on April 25, 1903, in New York state. It appears that the defendant, the wife, had been previously married, and had been divorced from her former husband, because of her adultery, by a judgment of the Supreme Court of this state entered on January 15,1892, in the office of the clerk of Oneida county, by which judgment it was provided that it should be lawful for the plaintiff in that action to marry again, but that it should not be lawful for the defendant therein (the defendant in the case at bar) to marry again until the plaintiff in that action should be actually dead. It also appeared that such former husband of the defendant was living at the time of the marriage between plaintiff and defendant and was alive up to June last. The defendant has not received
At the time of such divorce the Bevised Statutes contained the following provision: “Whenever a marriage has been or shall be dissolved, pursuant to the provisions of this article, the complainant may marry again during the lifetime of the defendant; but no defendant convicted of adultery shall marry again until the death of the complainant, unless- the court in .which the judgment of divorce was rendered shall in that respect modify such judgment, which modification shall only be made upon satisfactory proof that the complainant has remarried, that five years have elapsed since the_ decree of divorce was rendered, and that the conduct of the defendant since the dissolution of said marriage has been uniformly good.” B. S. part II, chap. 8, tit. I, § 49, as amd. by Laws of 1879, chap. 321.
By Laws of 1897, chapter 452, the foregoing provision was amended by striking out the words 1 ‘ that the complainant has remarried,.” and as so amended it remained in force until after • the marriage of the plaintiff and defendant in this action, in fact until the adoption of the Consolidated Laws, to which it was transferred without any change material to this action. Dom. Bel. Law (Laws of 1909, chap. 19), § 8. Section 1761 of the Civil Code (now repealed) covered in part the same ground as the provision of the Bevised Statutes just quoted, but did not repeal the same. Peck v. Peck, 8 Abb. N. C. 400.
At the time of the divorce it was also provided:
“ ISTo second, or other subsequent, marriage, shall be contracted by any person, during the lifetime of any former husband or wife of such person, unless,
*139 “ 1. The marriage with such former husband or wife, shall have been annulled or dissolved, for some cause other than the adultery of such person. * * *
“ Every marriage- contracted in violation of the provisions of this section, shall, except in the case provided for in the next section, be absolutely void.” R. S. part II, chap. 8, tit. I, § 5. The reference to the next section is to section 6, which provides for cases where one spouse has married after the absence of the other for five years.
This provision was adopted into the Domestic Relations Law of 1896 (Laws of 1896, chap. 272, § 3), in the following form:
“A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either:
“ 1. Such former marriage has been annulled or has been dissolved for a cause other than the adultery of such person.” Then follow other exceptions not material here.
This provision continued in force until the Consolidated Laws, into which it was adopted without change. Dom. Rel. Law (Laws of 1909, chap. 19), § 6.
Thus we have had during the entire period covered by the transactions above referred to a statutory provision that a person who has been divorced for his or her adultery shall not marry again during the lifetime of the innocent party, without leave of the court in certain eases, and making a márriage contracted) by such a divorced person absolutely void. There can be no doubt, therefore, but that the marriage between plaintiff and defendant was and is void. Cropsey v. Ogden, 11 N. Y. 223; Haviland v. Halstead, 34 id. 643; Matter of Borrowdale, 28 Hun, 336; Matter of Thorp, 31 Misc. Rep. 579.
“An action may also be maintained to procure a judgment, declaring a marriage contract * * * void and annulling the marriage, for either of the following causes, existing at the time of the marriage: * * *
“ 2. That the former husband or wife of one of the parties was living, and that the marriage with the former husband or wife was then in force. * * *
“ 4. That the consent of one of the parties was obtained by force, duress or fraud.”
This case does not, it seems, come under the provisions of subdivision 2. Although the defendant was at the time of her marriage to plaintiff legally incapable, because of the existence of her former husband, of entering into the marriage state, and the marriage was absolutely void, yet as the former marriage was not then in force, this provision does not seem to give jurisdiction to the court to annul the subsequent marriage. It is well settled that the jurisdiction of this court to annul marriages depends wholly upon statute, except in those cases in which annulment is sought for some cause for which chancery has power to cancel or avoid all contracts, such as lunacy or fraud. Griffin v. Griffin, 47 N. Y. 134, 138. In such cases, however, jurisdiction is inherent. Id.; Fisk v. Fisk, 6 App. Div. 432, 434. It seems to me that in a case of this kind, where the marriage is absolutely void, the court has
For these reasons I prefer to base the judgment of annulment on the ground of fraud, as the facts are, in my opinion, amply sufficient to sustain it.
There is, it is true, neither allegation nor proof that defendant made any false representation as to her status, other than the fact that she had resumed her maiden name, under which she was married to plaintiff. But the court is justified in concluding from the testimony that she did not disclose to the plaintiff the facts which rendered her incapable of contracting a valid marriage, or any fact which would put him on inquiry. Is the case, therefore, one which can be brought within the rule that suppression of the truth, where there was a duty to speak, is fraud, and were the facts concealed so material to the contract as to justify an annulment for fraud! Both these questions can, I think, be answered in the affirmative, and the same line of reasoning applies to both. Capacity to contract is one of the most important elements in marriage. The fact that one assumes to enter into the marriage state is, in itself, almost a representation that one is under no legal disability to do so, that is, no disability which would render the marraige void, as distinguished from voidable. The consequences of
Judgment accordingly.