103 N.Y.S. 894 | N.Y. App. Div. | 1907
Lead Opinion
- The plaintiff sues for breach of a promise to marry. Defendant denies that he ever promised to marry plaintiff, and by way of separate defenses alleges that prior to the. alleged agreement the plaintiff had been lawfully, married to . one Julius Stem,' and had' lived and cohabited with him as his wife, and that such marriage had never been annulled, nor had the parties ever., been divorced from the bonds thereof, and that in consequence the '■ plaintiff was hot competent to contract a marriage or to make a valid . engagement to marry; that plaintiff had brought two actions against said Stein, one for a separation and one for an annulment of the marriage on the ground, that at the time of his marriage' with' plaintiff St'ein had another wife living, and that plaintiff by holding herself out as .the wife of said Stein had estopped herself from claiming to be a single woman capable of entering into a valid engagement to marry. The plaintiff, although not requited to do so, voluntarily replied to these defenses, alleging that prior to January 10,1900, the date upon which she went through a marriage ceremony with J uiius Stein, he had [been duly married, to another woman, who, on said •10th day of January; 1900; was living; that, no divorce or annulment, of said marriage had been obtained ; that the same, was,-on ' -said ■ 10th day of January, 1900, in full force and effect, and' that by reason thereof the plaintiff never became nor is the lawful wife of
If we assume that the continuing validity of Stein’s first marriage is sufficiently pleaded in the reply, that pleading would seem to. be . . proof against demurrer. The Domestic Relations Law
The objection to the form of the reply is.extremely technical. The Domestic Relations Law (§ 3) declares that ‘ A marriage is abso
The allegation of the reply respecting julius Stein’s former marriage, is.that “ no divorce or annulment of the-said, marriage had been obtained; that the same was on the said 10th day of January,. 1900, ■ .in full' force and effect.” ' The criticism upon the reply is that the allegation that the former marriage was “ in full force and effect ” is a mere conclusion of law; that the word unless in the section . quoted from the Domestic Delations Law is ,to be construed as an. exception, and that since exceptions must be pleaded* the reply should have alleged specifically that J ulius' Stein’s former marriage had not been dissolved for a cause other than his adultery; that his former wife had not been' finally sentenced to imprisonment for. life, and that she had not absented herself for five successive years then last past without being known to said Stein to be living during that time. If it is necessary to plead these exceptions in this manner in a reply asserting, the invalidity of plaintiff’s marriage t,o Stein, it would be equally, necessary to so plead them in. an action to declare that marriage void; and it is quite certain that the. profession has not so understood heretofore, and no court has ever so . held. In my view the so-called exceptions partake much more of the character of provisos; but whether considered as exceptions - or provisos, it was not necessary to negative them in the pleading. This precise question came before the Court of Appeals with reference to an indictment for bigamy. (Fleming v. People, 27 N. Y. 329.) The-statute under which the defendant in that case was indicted'declared that every person having a wife living, who shall marry anj other person, shall, “except in the'cases specified in the next section, be adjudged guilty of bigamy,” etc. (2 D. S. .687, § 8.) The next sectión declared that the preceding one “ shall not. extend to ” certain persons and cases arranged in six classes', embracing those contained in the Domestic Delations Law respecting'void marriages.
In my opinion, therefore, the reply was sufficient and the demurrer should have been overruled; and even if it had been sustained the judgment appealed from is wrong, for the plaintiff should at least have been afforded an opportunity to amend her reply so as to sufficiently allege the invalidity of her marriage to, Stein.
The judgment should be reversed and the demurrer, overruled, with costs in this court and the court below.
Patterson, P. J., and Houghton, J., concurred; Laughlin and , Lambert, JJ., dissented.
‘.SeeLaws of 1896, chap. 372, §§ 2-4.— [Rep.
Dissenting Opinion
(dissenting):
The plaintiff brings this action to recover damages for breach of promise of marriage. She alleges in her complaint that “ heretofore and between March, 1902, and October, 1904, * * * at the. city óf New York, in consideration that the plaintiff, who then was and still is sole and unmarried, would marry the defendant, the said defendant promised and agreed to marry the plaintiff at a time thereafter to he mutually agreed upon, and within a reasonable . time.” The breach of this contract is set forth, and tile plaintiff demands judgment in the sum of $50,000. The answer of the . defendant-dénies the material allegations of the complaint and sets up three separate and distinct defenses, based upon a prior marriage of thé plaintiff with one J ulius Stein, and that the plaintiff now has actions pending in the courts of this State for separation and for the nullification of such marriage. The plaintiff replied to these defenses, setting up that the said J ulius Stein, her alleged husband,
.. The defendant demurred to these replies upon thé ground that they were insufficient in law upon the facé thereof. This demurrer has been-sustained, and the plaintiff appeals to this court. The allegation- of the. complaint that the. plaintiff is- sole and unmarried is denied by the defendant; but the allegation of her reply, that at the time of her alleged marriage to Stein the latter was married to another woman, who was then living, and that no divorce or annulment of said marriage had been obtained at the time of the ceremony between, the plaintiff ' and said Stein-,, stands admitted by the demurrer. Section 3 of the Domestic Relations Law (General Laws, chap. 48) provides that “ 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; 2. Such former husband or wife has been finally sentenced to imprisonment for life; 3. Such" former husband or wife has absented himself or herself for five successive years then last past without "being known to. such person to be living during that time.”
Assuming,, without deciding, that the reply is a relevant pleading in this action, its effect, if supported by evidence, would simply tend to establish the allegation of the complaint that the plaintiff, is “ sole and Unmarried.” The important question to be,determined upon demurrer is, whether'the allegations of the reply" aré sufficient in law to show that the plaintiff was “ sole -and unmarried ” at.the time of the alleged offer of marriage on the part of the defendant. The demurrer admits all of the facts- stated, but not the conclusions of law. At the time of "the ceremonial marriage of the plaintiff with Julius Stein, the latter had -been “ duly married to another Woman ” who was living ,at the time of her" alleged marriage to the said Stein, and that “ no divorce or annulment of the said marriage
■ “ The word unless has the force of -except" say the court in Manning, Bowman & Co. v. Keenan. (73 N. Y, 45, 56); “its primary.
The judgment should be affirmed, with costs. ■ -
Dissenting Opinion
(dissenting):
I am of opinion that the interlocutory judgméht' sustaining the demurrer to the reply should be affirmed. Assuming • that the
plaintiff was competent to contract a second marriage without first having her former marriage to Stein annulled, I. think it was incumbent upon her to allege all .facts essential to show that lier former marriage was void. The Legislature of the State has undertaken to prescribe by statute what constitutes a void and what constitutes avoidable marriage, and, therefore, the statutory law on this subr ject Supersedes the common law. It has not been declared by statute that every, marriage by a party who has a former husband or wife living shall be void. The Legislature has merely declared that such a marriage shall be void unless one of three facts existed. If the former marriage was annulled or the parties were legally divorced, or the former wife of Stein was duly sentenced to- imprisonmént for life, or absented herself for a period of five- years.tlién ■ last past, without being known to be living during that time, then . the former marriage was not void. (Dom. Bel. Law, §"■ 3.)- -In my opinion, the reply, in - order to meet ¿the - defense of the plaintiff’s
Moreover,. I am of opinion that even though the reply negatived the facts which would have taken the former marriage of Stein from the category of void marriages, still the plaintiff’s ceremonial marriage to Stein never having been annulled by a court of competent jurisdiction, her contract for marriage with the defendant was void upon grounds of public policy. Ho case in point upon the facts has been cited or found. The cases in which it has been adjudged that a second marriage was valid without a decree adjudging the first marriage void, have arisen between the parties to a second consummated marriage or concerning■ the issue of such marriage, where the court was compelled to decide the status of the parties or of their issue, after a second ceremonial marriage, followed by cohabitation. In all of 'the text books and decisions the impropriety of the second marriage without the annulment of the first is recognized. In the case at bar not only would society be offended by requiring the defendant to perform his contract to marry the plaintiff or what is tantamount thereto, because it involves the approval of the contract, to pay damages for his failure to do so, but such a decree of the court would result in a serious public scandal that would likely reflect not only on the defendant, hut on. any issue of the marriagé. In her reply plaintiff informs
Judgment reversed, with costs, and demurrer overruled, with costs. ■ •