Thorp v. . Thorp , 1882 N.Y. LEXIS 430 ( 1882 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The case of Van Voorhis et al. v. Brintnall et al. (86 N.Y. 18; 40 Am. Rep. 505) decides all the questions involved in this case, and makes necessary the reversal of the judgment in the court below. It was there held and determined by this court that the validity of a marriage contract is to be determined by the law of the State where it is entered into. If valid there, it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute. And it was further held that where, by a judgment of the Supreme Court of this State, a marriage between E. and B. was dissolved on the ground of the adultery of the latter, the decree of divorce adjudging it to be unlawful for him to marry during the life of E., and thereafter, during her life, he went to Connecticut and married I., both being residents of this State, having gone out of it for the purpose of evading its laws, returning to it on the day of the marriage, and thereafter residing here, which marriage was valid under the laws of Connecticut, the marriage was valid by the laws of this State, and that a child of the second marriage born in this State was legitimate, and entitled to share with the children of the first marriage in a devise to the issue of B. It was also held that the provisions of the Revised Statutes (2 R.S. 139, § 5; id. 146, § 49) prohibiting the second marriage of a person divorced on the ground of his or her adultery during the life of the former husband or wife, and declaring such marriage void, had no application, as they are in the nature of a penalty, and have no effect outside of the State in the absence of the express terms of the statute showing legislative intent to give them that effect.

The referee has found as a fact that the plaintiff and defendant were lawfully married in Philadelphia, according to the laws of the State of Pennsylvania.

It is insisted, however, by counsel for the respondent that notwithstanding the validity of the plaintiff's marriage, he is in contempt for marrying in violation of the decree entered in the action of his former wife against him, and that it was obligatory on the court below to deny the plaintiff its equitable relief when he comes therein and asks to be relieved from the obligation which he has assumed contrary to its express command. But the answer to this proposition is that in the case already cited it was held by this court that neither the decree nor the statute which authorized it had any effect outside the jurisdiction of this State. That the disqualification to marry again, like the disqualification imposed by statute upon a person convicted of a felony, to testify, is imposed as an additional punishment for the offense of which he has been convicted, and neither has any force or effect beyond the territory limits of the State in which it is imposed; and, as a judgment recovered in this State upon the evidence of a witness disqualified to testify by the laws of Ohio, being sent there to be enforced, must have the same force and effect as if it had been recovered upon the evidence of witnesses competent to testify according to the laws of Ohio, so a marriage which if celebrated in this State would have been void as having been contracted in violation of the statutes of the State, being celebrated in Ohio and valid according to the laws of that State must be regarded as valid here; and to each party thereto every right and privilege growing out of the relation so established must attach.

It follows that if the findings of the referee are confirmed by the court at Special Term, the plaintiff is entitled to a judgment dissolving the marriage.

The judgment of General Term should be reversed, and the case remitted to the Special Term.

All concur, except RAPALLO, J., absent.

Judgment reversed.