Stein v. Dunne ( 1907 )

Scott, J,:

- 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 said Stein, and that her marriage to said Stein was and is absolutely void and of no effect whatever. • To this reply the defendant demurred upon the ground of its insufficiency; his demurrer was sustained and a final judgment entered dismissing the complaint upon the merits. It is sought to sustain this judgment upon two , grounds: First, that the attempted marriage to Stein, although void, ■ incapacitated plaintiff from making a valid agreement to enter upon another marriage until the invalidity of the first marriage should be judicially determined, and, second, because the continued existence of Stein’s former marriage was insufficiently pleaded in. the reply. . . .

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^* makes a clear and sharp distinction between marriages which are absolutely void and those which are merely voidable, and this distinction has been recognized in our jurisprudence from the earliest days.. A marriage is absolutely void if, at the time of its celebration, .the former husband or wife of one of. the parties was living, and that marriage was then in force. (Dom. Rel. Law, § 3; Code Civ. ■ Proc. § 1743.) Such a marriage imposes upon the party imposed upon no legal restraint against' contracting another (Patterson v. Gaines, 6 How. [U. S.] 550, 592), and nó judicial sentence of nullity is necessary to free the party imposed upon. (Pettit v. Pettit,105 App. Div. 312.) There is undoubtedly a fitness and propriety in procuring a judicial decree determining the nullity of such a marriage, and the Code permits an action to be maintained for that purpose, but a decree in such an action does not, however, avoid the • marriage, but merely declares its invalidity. If plaintiff’s former marriage to Stein was void, as she attempts to allege, then she and defendant could have contracted a valid marriage on the date on • which, as she says, defendant promised" to marry her, and if this be so she certainly could have lawfully agreed to do that which she could lawfully perform. ■

The objection to the form of the reply is.extremely technical. The Domestic Relations Law (§ 3) declares that ‘ A marriage is absolately void if-contracted by a person whose husband or wife by a: former marriagé.'is living, unless either: 1., Such former marriage has been: annulled or lias 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 he living during that time.” . *

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. The indictment failed to negative the exceptions, and its sufficiency was for that reason called in question. The chief judge (Denio) was of the opinion that the cases stated in which a second marriage would be bigamous constituted exceptions which should technically have been negatived in the indictment; but that the defect was purely formal and immaterial, because the People would be under no necessity to offer proof to negative the exceptions, which were matter of defense. Judge Emott, however, with whom the other judges agreed, was of the opinion that the cases specified in the statute were rather in the nature of provisos than of exceptions, and . that it was necessary neither to negative them in the indictment, nor to offer proof thereon upon the trial.

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.