THOMAS W. BERRY
H. B. Bradbury, for appellant.
I. G. Frauenthal (Charles Weishaupt, of counsel), for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.
This is an action to annul a marriage brought by the husband upon the ground that at the time of the marriage he [114 N.Y.S. 498] had a legal wife, to whom he had been previously married, living and who was still living. The learned court found as matter of fact: That on or about the 15th day of September, 1885, at Leeds, in the county of York, England, plaintiff and one Emma Bulmer were married, and that subsequent to said marriage they lived together as man and wife for the period of about one year. That plaintiff left England and came to the city and state of New York, where he has ever since resided. That, at the time he left England, he promised to send for said Emma Bulmer to come to New York at some future time. That prior to and continuously from September 15, 1885, to May 24, 1907, the said Emma Bulmer resided in Leeds. That during of all said period plaintiff's father resided at 15 Fox and Grapes Yard, Leeds, and that the said Emma Bulmer and her whereabouts were well known to him. That on or about December 31, 1896, plaintiff received a letter dated December 21, 1896, from one Basfield, residing in Leeds, the material portions of which read as follows:
" I was sorry when I heard of Emma's death. I hope you will have got over it before this. I should think you will be glad to have some one about you as a friend. Albert says you were just about to send for her over or had sent her money to come with. I am sorry at your disappointment and hope you will soon find comfort in another's company."
That on or about February 22, 1897, plaintiff and defendant were married in the city of New York, and lived and cohabited together as man and wife in said city from the time of such marriage to and until about the 1st day of March, 1906. That, before contracting the marriage, plaintiff failed and neglected to communicate with the proper and official authorities in Leeds, county of York, England, to ascertain the truth or falsity of the letter hereinbefore referred to, so far as it concerned the alleged death of said Emma Bulmer, or to make further necessary inquiries. That, at the time of his marriage with the defendant, plaintiff, in answer to the officiating rector, when asked if he was single, widowed, or divorced, replied that he was single, and, in reply to the question " number of groom's marriage," replied that it was his first. That in the month of August, 1904, plaintiff went to Leeds, England, on a visit, met said Emma Bulmer, conversed with her, and returned the same month to the city of New York. That, well knowing that said Emma Bulmer was still living, plaintiff continued to live and cohabit with defendant as her husband up to and until March, 1906. That the allegation under oath in the complaint that at the time of the marriage between plaintiff and defendant " plaintiff had not seen nor heard from the said Emma Bulmer for a long period of time, to wit, more than five years," is untrue. That plaintiff has not proven or established that Emma Bulmer absented herself for five years or for any period. And, as conclusions of law, that the plaintiff has not acted in good faith; that the marriage should not be annulled at the suit of the plaintiff; that plaintiff has not made out a cause of action; and that the complaint should be, and is hereby, dismissed upon the merits.
The complaint was verified on the 13th of March, 1906. The evidence sustains the findings of fact, and establishes that the marriage [114 N.Y.S. 499] of plaintiff to the defendant was void under section 3 of the domestic relations law (chapter 272, p. 216, Laws 1896), which provides that:
" A marriage is absolutely void if contracted by a person whose husband or wife, by a former marriage, is living, unless *** (3) such former husband or wife has absented himself or herself for five successive years then last passed, without being known to such person to be living during that time."
Section 4 thereof provides:
" 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 passed, without being known to such party to be living during that time. Actions to annul a void or voidable marriage may be brought only as provided in the Code of Civil Procedure."
Section 1743 of the Code of Civil Procedure provides that:
" An action may also be maintained to procure a judgment declaring a marriage contract void and annulling the marriage for either of the following causes existing at the time of the marriage.*** (2) That the former husband or wife of one of the parties was living and that the marriage of the former husband or wife was then in force."
Section 1745 provides that:
" An action to annul a marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the ...