Licensing and pro

Licensing provisions revised; Agricultural L., §§ 131-139-m. tection of domestic animals from attacks by; Agricultural L., § 32 ff. Authorizing supervisors to raise money to pay for sheep killed by; County L., § 12, sub. 42.

DOMESTIC RELATIONS LAW.

(L. 1909, ch. 19.)

§ 6. Void marriages.

Presumption of marriage.-Matter of Simms (1918), 105 Misc. 118, 172 N. Y. Supp. 670.

A civil marriage entered into while a common law marriage was in force is void. Matter of Wright (1920), 110 Misc. 480, 180 N. Y. Supp. 635.

Foreign divorce.-When action for annulment of marriage on ground that defendant was divorced from first husband in foreign State for cause not recognized in this State may not be maintained. Hubbard v. Hubbard (1920), 228 N. Y. 81, 126 N. E. 508, affg. 186 App. Div. 883, 172 N. Y. Supp. 898.

A marriage will not be annulled on the ground that the defendant at the time she married the plaintiff, a resident of this State, had a husband living from whom she was not legally divorced, where it appears that the defendant was married to her first husband in Missouri and was living there at the time she was served by publication and a decree granted in an action for divorce instituted by her first husband in Nevada, and the decree of the Nevada court was recognized as valid in Missouri, for under such circumstances the decree should be recognized as valid and binding in New York when collaterally attacked. Ball v. Cross (1920), 190 App. Div. 711, 180 N. Y. Supp. 434.

Section cited.-Hermann v. Ludwig (1919), 186 App. Div. 287, 174 N. Y. Supp. 469; Gilson v. Airy (1918), 181 App. Div. 761, 169 N. Y. Supp. 242; Matter of Cassidy (1919), 109 Misc. 202, 178 N. Y. Supp. 366.

§ 7. Voidable marriages.

There is no general equitable jurisdiction to set aside marriages.-The power to deal with matrimonial actions must be found in the statutes. Davidson v. Ream (1917), 178 App. Div. 362, 164 N. Y. Supp. 1037.

Former husband or wife living.-Wolf v. Wolf (1919), 109 Misc. 366, 178 N. Y. Supp. 726.

Where, in an action to annul a marriage between the plaintiff and the defendant, performed in Connecticut when they were residents of this State, on the theory that it was void on the ground that the defendant had a former husband living at the time, it appears that the plaintiff persuaded and induced the present defendant to obtain a divorce and supplied the necessary funds to enable her to go to and remain in Nevada for such purpose and was fully aware of all the material facts with respect thereto and with respect to the absence of her former husband at the time he married her, and that he advised and assured her that the divorce so obtained would be and was valid, the plaintiff is not in a position to contend that the Nevada divorce was void for want of jurisdiction because procured only by

constructive service of process, even though the defendant's husband was then a resident of this State. Kaufman v. Kaufman (1917), 177 App. Div. 162, 163 N. Y. Supp. 566.

The age of legal consent for men and women alike is eighteen. Padula v. Padula (1916) .96 Misc. 597, 160 N. Y. Supp. 833.

Fraud that will justify the annulment of a marriage must be a false representation expressly or impliedly made of an existing fact that is a material consideration to the wronged party. A man's refusal to keep his promise to a woman that after the civil marriage he would enter into a religious ceremony with her, is not fraud in a legal sense and will not support an action for the annulment of their marriage, though it was never consummated. Schachter v. Schachter (1919), 109 Misc. 152, 178 N. Y. Supp. 212.

Where a wife upon her discovery, only a few hours after her marriage, that her husband had been previously married, without having cohabited with him returns to her own home and has since resided there, her marriage will be annulled upon the ground of fraud. Weill v. Weill (1918), 104 Misc. 561, 172 N. Y. Supp. 589.

Where a husband absolutely refuses to have a Hebrew religious ceremony performed in fulfillment of his promise made to his wife before the civil marriage, she is entitled to a decree adjudging the marriage null and void where it appears that she had never cohabited with nor been supported by him. Rubinson v. Rubinson (1920), 110 Misc. 114, 181 N. Y. Supp. 28.

False representations as to past life.—Where in a wife's action to have her marriage with defendant annulled for fraud it appears that he procured plaintiff's consent to the marriage by false representations as to his past life, though frankly stating it was not spotless and that he knew plaintiff regarded these matters as material, without which she would not have married him, and neither the interests of the community nor of their child require that the court should refuse to free the plaintiff from the marriage, she will be given judgment annulling same. Libman v. Libman (1918), 102 Misc. 443, 169 N. Y. Supp. 900.

Fraud based upon concealment by defendant that she was an epileptic; voluntary cohabitation precluding annulment; waiver of allegations of force and duress.— Where, in an action for the annulment of a marriage upon the ground of force, duress and fraud based upon the fact that at the time of such marriage defendant was an epileptic and that she concealed such infirmity from the plaintiff, and upon the claim that the defendant threatened to kill the plaintiff unless he married her, it appears that the parties voluntarily cohabited subsequent to the marriage, the alleged force and duress must be deemed to have been waived. A finding in such an action that the plaintiff was induced to marry the defendant through deception, concealment or misrepresentation on defendant's part, held, to be against the weight of the evidence, and moreover, at it is conclusively shown that plaintiff voluntarily cohabited with defendant as his wife, with full knowledge of the facts constituting the alleged fraud upon him, he is precluded from obtaining an annulment upon that ground. McGill v. McGill (1917), 179 App. Div. 343, 166 N. Y. Supp. 397, affd. 226 N. Y. 673, 123 N. E. 877.

Effect of provision of judgment declaring marriage void from its inception.— People ex rel. Plumley v. Higgins (1919), 109 Misc. 328, 178 N. Y. Supp. 728

Section cited.-Hermann v. Ludwig (1919), 186 App. Div. 287, 174 N. Y. Supp. 469; Bays v. Bays (1918), 105 Misc. 492, 174 N. Y. Supp. 212; Reed v. Reed (1919), 106 Misc. 85, 175 N. Y. Supp. 264; Matter of Cassidy (1919), 109 Misc. 202, 178 N. Y. Supp. 366.

L. 1919, ch. 265.

Marriage.

§§ 8, 10.

§ 8. Marriage after divorce for adultery.-Whenever a marriage has been or shall be dissolved, the complainant may marry again during the lifetime of the defendant. But a defendant for whose adultery the judgment of divorce has been granted in this state may not marry again during the lifetime of the complainant, unless the court in which the judgment of divorce was rendered shall in that respect modify such judgment, which modification shall be made only upon satisfactory proof that three 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; and a defendant for whose adultery the judgment of divorce has been rendered in another state or country may not marry again in this state during the lifetime of the complainant unless three years have elapsed since the rendition of such judgment and there is no legal impediment, by reason of such judgment, to such marriage in the state or country where the judgment was rendered. But this section shall not prevent the remarriage of the parties to an action for divorce. (Amended by L. 1915, ch. 266 and L. 1919, ch. 265.)

Effect of remarriage in another state upon right to custody of infant child. The remarriage in another State of the defendant in a divorce action, contrary to the decree of divorce of the court of this State, does not impair his fitness to have or share in the custody of his only infant child, but where such marriage is to a concededly respectable and worthy woman, with whom he has lived an entirely exemplary life, it may to some extent increase his fitness. Lester v. Lester (1917), 178 App. Div. 205, 165 N. Y. Supp. 187.

Section cited.—Matter of Wadsworth (1917), 100 Misc. 439, 166 N. Y. Supp. 716, affd. 183 App. Div. 944, 172 N. Y. Supp. 924.

§ 10. Marriage a civil contract.

Common law marriage, evidence establishing. Matter of Mancini (1919), 108 Misc. 102, 178 N. Y. Supp. 57. Evidence insufficient to sustain a common law marriage. Matter of Sheedy (1919), 107 Misc. 204, 175 N. Y. Supp. 891.

Where two parties, there being no legal impediment to the contract of a marriage between them, procure a marriage ceremony to be performed in the State of New Jersey, but fail to secure the proper license, and upon returning to this State cohabit as man and wife and mutually introduce each other as husband and wife to many people, a common-law marriage within this State is effected. Davidson v. Ream (1917). 178 App. Div. 362, 164 N. Y. Supp. 1037.

In an action to annul a marriage entered into in August, 1914, on the ground that the defendant had another husband living at the time of her marriage to plaintiff it appeared that an interlocutory decree had been entered in her favor in an action against the former husband for divorce and that about ten days before the entry of the final decree she was married to plaintiff, who testified that at the time of his marriage to defendant, he did not know that said final decree had not been entered. It further appeared that from the time of the marriage sought to be annulled until about a week before the present action was commenced the parties had lived as husband and wife. Held, that though the marriage involved in the present action was illegal yet having apparently been entered into in good faith with intent to contract a valid marriage plaintiff was not entitled to the relief VOL. X-27

§§ 11-13.

Marriage.

L. 1918, ch. 620. asked, for the reason that the facts disclosed made out a valid common-law marriage. Wilson v. Burnett (1918), 105 Misc. 279, 172 N. Y. Supp. 673.

§ 11. By whom a marriage must be solemnized.-1. A clergyman or minister of any religion, or by the senior leader, or any of the other three leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture having its principal office in the borough of Brooklyn of the city of New York. (Subd. amended by L. 1920, ch. 231, in effect Apr. 16, 1920.)

2. A Mayor, recorder, city magistrate, police justice or police magistrate of a city, or the city clerk of a city of the first class of over one million inhabitants or any of his deputies or a regular clerk, designated by him for such purpose as provided in section eleven-a of this chapter, except that in cities which contain more than one hundred thousand and less than one million inhabitants, a marriage shall be solemnized by the mayor, or police justice, and by no other officer of such city, except as provided in Subdivisions one and three of this section. (Subd. amended by L. 1916, ch. 524, and L. 1918, ch. 620.)

§ 11-a. Duty of city clerk in certain cities of the first class.-The city clerk of a city of the first class of over one million inhabitants may designate in writing any of his deputies or one of his regular clerks to perform marriage ceremonies, which designation shall be in writing and be filed in the office of such city clerk. The day and hour of such filing shall be endorsed on the designation. Any such designation shall be and remain in effect for six months from the filing thereof. The designation of a deputy heretofore made for such purpose shall expire ninety days after this section, as hereby amended, takes effect. Whenever persons to whom the city clerk of any such city of the first class shall have issued a marriage license shall request him to solemnize the rites of matrimony between them and present to him such license it shall be the duty of such clerk, either in person or by one of his deputies or a regular clerk so designated by him to solemnize such marriage; provided, however, that nothing contained either in this section. or in subdivision two of section eleven of this chapter shall be construed as empowering or requiring either the said city clerk or any of his designated deputies or regular clerk to solemnize marriages at any place other than at the office of such city clerk. In all cases in which the city clerk of such city or one of his deputies or a regular clerk so designated shall perform a marriage ceremony such official shall demand and be entitled to collect therefor a fee of two dollars, which sum shall be paid by the contracting parties. before or immediately upon the solemnization of the marriage; and all such fees so received shall be paid over monthly to the treasurer of the city. (Added by L. 1916, ch. 524, and amended by L. 1918, ch. 620.)

§ 13. Marriage licenses.-It shall be necessary for all persons intending

L. 1920, ch. 213.

Marriage.

§§ 15, 16, 19.

to be married to obtain a marriage license from the town or city clerk of the town or city in which the woman to be married resides and to deliver said license to the clergyman or magistrate who is to officiate before the marriage can be performed. If the woman or both parties to be married are non-residents of the state such license shall be obtained from the clerk of the town or city in which the marriage is to be performed; or, if the woman to be married resides upon an island located not less than twentyfive miles from the office or residence of the town clerk of the town of which such island is a part, and such office or residence is not on such island such license may be obtained from any justice of the peace residing on such island, and such justice, in respect to powers and duties relating to marriage licenses, shall be subject to the provisions of this article governing town clerks and shall file all statements or affidavits received by him while acting under the provisions of this secion with the town clerk of such town.. (Amended by L. 1914, ch. 230, and by L. 1918, ch. 236.)

§ 15. Duty of town and city clerks.

Consent of parents.-The fact that this section requires the consent of parents before a license can issue, if the man is under twenty-one, does not fix the age of consent or affect the question of annulment. Padula v. Padula (1916), 96 Misc. 597, 160 N. Y. Supp. 833.

Amendment of marriage license.-A motion directing the clerk of the city of New York to amend a marriage license so that it will correctly state the name of the applicant, may not be granted in the absence of statutory authority. Matter of Bjune (1919), 109 Misc. 247, 178 N. Y. Supp. 498.

Section cited.-Bays v. Bays (1919), 105 Misc. 492, 174 N. Y. Supp. 212.

§ 16. False statements and affidavits.

Where a minor in order to obtain a marriage license makes and verifies a false statement giving his age as twenty-one years, the license must issue and the parties may be married; and although under this section of the Domestic Relations Law he may be punished for making the false statement the marriage is valid. Bays v. Bays (1918), 105 Misc. 492, 174 N. Y. Supp. 212.

§ 19. Records to be kept by town and city clerks.-Each town and city clerk hereby empowered to issue marriage licenses shall keep a book in which he shall record and index all affidavits, statements, consents and licenses, together with the certificate attached showing the performance of the marriage ceremony, which book shall be kept and preserved as a part of the public records of his office. Whenever an application is made for a search of such records the city or town clerk may make such search and furnish a certificate of the result to the applicant upon the payment of a fee of fifty cents for a search of one year and a further fee of ten cents for each additional year, which fees shall be paid in advance of such search. All such affidavits, statements and consents, immediately upon the taking or receiving of the same by the town or city clerk, shall be recorded and indexed and shall be public records and open to public inspection. On or