App. Div.] Fourth Department, November, 1920. the rates, privileges and conditions applicable to all shippers exactly the same. At the time of this shipment the tariffs and classifications provided that a reconsignment or diversion en route could only be made if requested in writing. (Circular No. 1109, Supplement No. 24, rule 1.) Undoubtedly, if this same arrangement had been made between individuals it might be held that the agent had authority to waive or that the defendant was estopped by his acts, but that rule has no application whatever to interstate shipments and it has been held that the privilege of diverting cars is of value to the shipper and that to permit one shipper to divert cars without complying with all of the rules and regulations would be a discrimination against other shippers who were compelled to comply with such rules and regulations, and the courts have been very strict in holding that any agreement, act or conduct which attempts to alter the provisions established by the published rules is a violation of the Interstate Commerce Act and that such agreement in violation of the act does not afford a basis for a recovery against a railroad company. (Southern Railway v. Prescott, 240 U. S. 632, 638; 60 Law. Ed. 836, 839.) any If I am right in the conclusion which I have reached, it is unnecessary to discuss the other points raised, as the trial justice was correct in the conclusion which he reached although he based it upon a different proposition. It has been urged by the appellant that at the time the plaintiff talked with the agent on November eighteenth, and asked that the car be sent to Minneapolis, he did not know that the car had left Romulus station. This is not in accordance with the pleadings, from which it appears that the instruction to the defendant's agent on November eighteenth was to divert a car that had already been shipped and to reconsign it. That leads to the question of whether or not the stipulation should have been considered by the Special Term or can be considered here. I think that the stipulation should be considered. It is nothing more or less than an amendment or amplification of the pleadings by consent. It has been held that on a motion for judgment on the pleadings a court should take into consideration not only the pleadings but a bill of particulars. (Wood v. Miller, 78 Misc. Rep. 377; Dineen v. May, 149 App. Div. 469.) The stipulation is not a stipulation of facts; Fourth Department, November, 1920. [Vol. 194. it is a stipulation that certain constructions may be placed upon certain clauses in the reply. It points out what the parties to the stipulation understood the words referred to to mean. It was made to clear up certain allegations of the reply so that there would be a written record of what the parties claimed was meant by such allegations. I advise that the judgment appealed from be affirmed, with costs. All concur. Judgment and order affirmed, with costs. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK D. DUNBAR, alias CLYDE EDWARD BROOKS, alias DR. WILKINSON, Appellant. Fourth Department, November 24, 1920. Crimes bigamy second marriage contracted after absence of spouse five years third marriage as bigamous when based on second marriage. The defendant was properly convicted of bigamy, he having married a third wife while the second was living, where his second marriage was contracted after the absence of his first wife for more than five years and where he thereafter procured a divorce from his first wife as soon as he knew that she was living and then continued to live with his second wife for sometime thereafter. Where a person enters into a second marriage while having a husband or wife by a prior marriage still living who has absented himself or herself for five successive years without being known to the party contracting the second marriage to be living during that time, the second marriage is not void but voidable and cannot be attacked collaterally and a charge of bigamy may be based thereon where such person marries a third time while the second wife is living. APPEAL by the defendant, Frank D. Dunbar, from a judgment of the County Court of Cayuga county, rendered on the 10th day of June, 1920, convicting him of the crime of bigamy. App. Div.] Fourth Department, November, 1920. Richard T. Anderson, for the appellant. Benn Kenyon, District Attorney, for the respondent. HUBBS, J.: The defendant was convicted of the crime of bigamy under an indictment which charged that on the 27th day of January, 1920, he married one Geraldine Raleigh in the city of Syracuse, N. Y., while he then had a wife living by the name of Effie May Seeley whom he had married on the 23d day of August, 1906, at the city of Syracuse, N. Y. Upon the trial the defendant admitted that he was married by the ceremonial marriages as charged in the indictment. He contended, however, at the trial and now urges that by the marriage to Geraldine Raleigh on the 27th day of January, 1920, he did not commit the crime of bigamy for the reason that the alleged marriage to Effie May Seeley on August 23, 1906, was null and void because at the time of that marriage he had a wife living whose name was Leonora Healy, to whom he had been duly and legally married on November 26, 1897. The defendant testified that in 1899, two years after he entered into the first marriage with the Healy woman, she left him and that he did not know until the winter of 1909 that she was living. That was four years after his second marriage, the marriage to Effie May Seeley. He then procured a decree of divorce from the Healy woman, the one whom he married in 1897, and he continued to live for some time thereafter with Effie May Seeley, the second woman whom he married, treating her as his lawful wife. Therefore, we have squarely presented the question whether or not the marriage which took place between the defendant and Effie May Seeley in 1906 made Effie May Seeley his wife within the meaning of section 340 of the Penal Law, so that his subsequent marriage on January 27, 1920, to Geraldine Raleigh made him guilty of the crime of bigamy. Section 340 of the Penal Law reads as follows: "A person who, having a husband or wife living, marries another person, is guilty of bigamy and is punishable by imprisonment in a penitentiary or State prison for not more than five years." The defendant contends that his second marriage was void APP. DIV,- VOL. CXCIV. 10 Fourth Department, November, 1920. [Vol. 194. because, at the time it was contracted, his first wife was living, and, hence, that no charge of bigamy for a third marriage may be founded upon the second. Many cases are cited by the appellant stating the general rule substantially as set forth by Mr. Justice MCLENNAN in the case of People v. Corbett (49 App. Div. 514) where he wrote: "Cases might be cited, decided by the highest court in almost every State of the Union, which hold that where marriage is solemnized between parties who are prohibited from entering into that relation by statute, such marriage is absolutely void, and that if such void marriage is followed by another and subsequent marriage, the void marriage cannot be made the basis of a conviction for bigamy." That the foregoing is a correct statement of the general rule cannot be questioned and it is undoubtedly true that at common law said second marriage would have been absolutely null and void. At common law the remarriage of one having a husband or wife actually living, though unheard of for years and believed to be dead, was void ab initio. (Price v. Price, 124 N. Y. 589, 596.) At the time the defendant entered into the marriage ceremony with Effie May Seeley it was provided by section 3 of chapter 48 of the General Laws, being chapter 272 of the Laws of 1896, known as the Domestic Relations Law, as follows: "Void marriages.-A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either: * "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." It is further provided, by section 4 of the same act, as follows: "Voidable marriages.-A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: * * * "5. Has a husband or wife by a former marriage living, and such former husband or wife has absented himself or herself for five successive years then last past without being known to such party to be living during that time." It is urged by the People, under those provisions of the App. Div.] Fourth Department, November, 1920. statute, that the marriage between the defendant and Effie May Seeley was not void and that the defendant, when he married Geraldine Raleigh, had a wife living, to wit, the said Effie May Seeley. While the exact question here presented does not seem to have been passed upon by the courts, it has been held in many cases that where a person enters into a second marriage while having a husband or wife by a prior marriage still living who has absented himself or herself for five successive years without being known to the party contracting the second marriage to be living during that time, such second marriage is not void and it has been held valid for many purposes although it has developed after such second marriage that the first husband or wife was still living. In the case of Stokes v. Stokes (198 N. Y. 301, 305) Judge VANN wrote: "If she did not then know it within the true meaning of the statute and she married the second time in the full belief, after due observance of the five years' provision, that her first husband was dead, the marriage was not void but voidable, binding upon both parties. thereto until action by the court, and their relation was that of honorable marriage, with no stain on the good name of either and no blight on the status of any child they might. have." In Matter of Kutter (79 Misc. Rep. 74) Surrogate FOWLER said: "Such a second marriage subsists until death or an adjudication avoiding it, and this is so even if it transpires that the disappearing spouse of the prior marriage reappear." The validity of such second marriage cannot be attacked collaterally. (Frank v. Carter, 219 N. Y. 35, 38.) In the case of Price v. Price (124 N. Y. 589, 599) the court said: "The changes effected by the Revised Statutes in the rights of parties entering in good faith into a marriage while one has a living and undivorced spouse who has been absent for five years and not known to be living, are: (1) The marriage is not void from the beginning, but voidable. (2) When judicially annulled, it is only void from the date of the judgment. (3) When so annulled, the issue may be adjudged entitled to succeed to the estate of the parent who was competent to marry, in the same manner as legitimate children. (4) It has been held that while such a marriage remains unan |