The opinion of the court was delivered by: RAYFIEL
These are cross motions for summary judgment.
The plaintiff brings this action under Sec. 405(g) of Title 42 U.S.C.A. in her own behalf and in behalf of her infant son to review the decision of the Social Security Administrator, denying their claims for Social Security benefit payments.
The facts, which are undisputed, follow: On October 27, 1926 Louis Polotti, the wage earner, married one Theresa Marie Geraci in the church of St. Thomas Aquinas of Flatlands, in Brooklyn, New York. On March 25, 1931 she obtained a decree of divorce against him from the General Court of the First Instance, Fifth Judicial District, State of Morelos, Mexico. Neither of the parties appeared personally before the court, and the divorce is one of those commonly referred to as a Mexican 'mail order' divorce. In 1944 the said Theresa Marie Geraci remarried.
Sometime in 1943 the plaintiff met the wage earner, and, in 1948, commenced keeping company with him. They both resided in Staten Island, New York. In March, 1951, they decided to marry, and went to the Office of the City Clerk in Staten Island to obtain a marriage license. The application which they were required to fill out contained questions respecting their marital status, including inquiries concerning the wage earner's divorce. When he disclosed that his first marriage had been terminated by a Mexican divorce they were told by the Clerk that by reason thereof they could not marry in New York but he suggested that they could procure a license and be married in Bayonne, New Jersey. About two weeks thereafter they went to Bayonne, obtained a license, and on March 28, 1951 were married in a civil ceremony. They then lived together in Staten Island as husband and wife, and on January 3, 1953 a son, Charles, the infant claimant herein, was born. On February 2, 1956 the wage earner died, and the plaintiff made application for Social Security benefits for herself and her infant son. Initially, the Social Security Administration issued a Certificate of Social Insurance Award, certifying that the plaintiff and her infant son were entitled to benefits of $ 77.70 each per month, based upon a determination that a legal relationship existed between the plaintiff and the wage earner. Thereafter the plaintiff received a letter from the Social Security Administration, dated February 11, 1957, wherein she was informed that Social Security benefits were denied to her and her son for the reason that the wage earner's first marriage was terminated by a Mexican 'mail order' divorce, and, therefore, that her marriage to the wage earner was not legally valid.
The plaintiff, feeling aggrieved by such determination, requested a hearing before a Referee of the Social Security Administration. The hearing was held on October 9, 1957. The Referee, in a decision dated November 7, 1957, found that the marriage of the plaintiff and the wage earner was void by reason of the invalidity of the wage earner's Mexican divorce from his first wife, who was living and that the plaintiff's son, the infant claimant herein, was illegitimate, and he affirmed the disallowance of the claims. This action was then commenced by the plaintiff.
Counsel for the plaintiff contends that the Social Security Administrator, having once made an award of Social Security benefits to the plaintiff and her infant son, could not reverse his determination, and deny the right to benefit payments. He bases his argument on Section 404(b) of Title 42 U.S.C.A., which reads as follows:
'There shall be no adjustment or recovery by the United States in any case where incorrect payment has been made to an individual who is without fault * * * and where adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.'
That argument is without merit. Section 404(b) merely denies the Government the right to recover benefit payments theretofore made by the Administrator in error, where the claimant was without fault. It does not prevent the Administrator from correcting or denying an award erroneously made by him.
I come now to the question of the validity of the wage earner's marriage to the plaintiff, for, if that marriage was void by reason of the invalidity of the wage earner's Mexican divorce, she is not entitled to receive Social Security benefits on his death. The Referee found that neither New York nor New Jersey recognizes the validity of so-called Mexican 'mail order' divorces, and cited the leading cases in New York and New Jersey to that effect. (See transcript of record of proceedings before the Social Security Administration, p. 10). He also found that because of the invalidity of the wage earner's divorce his first marriage was never terminated, and the wage earner and the plaintiff were never validly married, and, therefore, that she is not entitled to recover Social Security benefits. I am of the opinion that those findings of the Referee are supported by substantial evidence, and, hence, are conclusive under Sec. 405(g) of Title 42 U.S.C.A.
The Referee also found that because of the invalidity of the second marriage the child born to the wage earner and the plaintiff is illegitimate, and is therefore not entitled to any Social Security benefits, since Section 416(h) of Title 42 U.S.C.A provided that the family relationship existing between the wage earner and the child is determinable by the law of the state of their domicile, in this case, New York. This State holds that the wage earner's child can share in his estate only if the child is legitimate, according to the law of the State of New York. See In re Cady's Estate, 257 App.Div. 129, 12 N.Y.S.2d 750, affirmed 281 N.Y. 688, 23 N.E.2d 18.
The Referee has found that the child was illegitimate, despite the language of Section 1135 of the New York Civil Practice Act, which states: 'Legitimacy of children. The following provisions govern the effect of declaring a marriage void or annulling a voidable marriage upon the legitimacy of children of the marriage: