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March 31, 1966

Della J. McSWEENEY, Plaintiff,
Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

 Plaintiff, Della J. Hassett McSweeney, has moved "for an order granting the plaintiff judgment upon the pleadings herein and * * * transcript of the record, pursuant to Section 405(g) Title 42, United States Code * * *."

 The ultimate issue is whether the administrative decision *fn1" - that plaintiff was not the common-law wife of Callaghan L. McSweeney under the substantive law of New York State, and, therefore, not entitled to Widow's Insurance Benefits - is based upon facts which are supported by substantial evidence and valid conclusions of law in the light of the record considered as a whole.

 Della Hassett McSweeney, old, alone and impecunious, presents a case that cannot fail to evoke sympathy. Now seventy-three years of age, she lived for thirty-four years with Callaghan L. McSweeney until his death on December 9, 1962. Her open and continuous cohabitation with him - a relationship marked by mutual devotion and requited love - and their repute in the community as husband and wife are accepted facts. Equally undisputed is the circumstance that Della and Callaghan never solemnized their alliance by a civil or religious marriage ceremony.

 Did their relationship represent the union of man and spouse or the liaison of lover and paramour? Rejecting Della's claim for social security benefits as Callaghan's widow, the government has decided - despite much evidence strongly pointing the other way - to accept what it regards as substantial proof of greater credence and plausibility, supporting the conclusion that Callaghan and Della never intended to and never did take each other as husband and wife.

 Judicial review in this case requires a close examination of the entire record of testimony and exhibits and an analysis of all permissible inferences. The decisive issue is not how this court would have decided the case as an original proposition but whether the administrative determination is supported by substantial evidence considered in the light of the record as a whole. This rule of substantiality is one of qualitative analysis, not merely a quantitative inventory of evidentiary items. In discharging that function, the court must evaluate the direct and circumstantial evidence and apply to that evaluation the governing criteria of judicial review of administrative decisions.

 The focus on the crucial issue can be further sharpened by pointing out that the government has explicitly recognized that, prior to April 29, 1933, common law marriages were lawful in New York State; and that, if Della had proved a common law marriage to Callaghan prior to that date, she would have been entitled to the widow's benefits she now seeks.

 The whole case, therefore, hinges on the question whether there was substantial evidence before the administrative agency, considering the record as a whole, on the basis of which the agency could properly have found, as it did, that Della and Callaghan never entered into a common law marriage during the years prior to April 29, 1933.

 Della J. Hassett and Callaghan L. McSweeney met in 1928. At the time she was thirty-five; *fn2" he was thirty-two. *fn3" They were single and nubile. Neither suffered from any legal disability or physical impediment in the path of marriage. He had no friends or relatives in this country. She lived with a widowed sister and niece.

 The circumstances of how and when they commenced living together must be reconstructed in order to determine whether there is substantial evidence in the record as a whole to support the government's findings (1) that the relationship was illicit in its inception and (2) that Della has not adduced evidence to neutralize the inference that the meretriciousness continued and that she has failed to establish that Della and Callaghan ever entered into the covenant of marriage per verba de praesenti.

 When and How the Cohabitation Began4

 1. According to Della's application for survivor's insurance benefits (Exh. 2) and her "statement of marital relationship" (Exh. 3), both dated and filed December 19, 1962, ten days after Callaghan's death:

 In response to question [1(a)] in Exhibit 3, "When did you begin living together?," she answered "April 1931" and that they lived "together continuously since that time." However, in answering question [2(b)] in Exhibit 3, "Where have you lived together and for what periods of time?," she answered, "From 4/28 to 12/62." *fn5"

 In response to question 8 in Exhibit 2, she said she married Callaghan in "April 1931" and that the marriage was "common-law."

 In response to specific questions in Exhibit 3, she answered that she had an understanding as to their relationship when they began living together; that, as to their living together, "We loved [one] another and would be man and wife"; "we would live together for the rest of our lives."

 2. According to Della's application for a lump-sum death payment (Exh. 5), dated and filed February 6, 1963:

 In response to question 9, she replied that Callaghan married her in April 1931. Under the heading, "Remarks," she said: "Mr. McSweeney and I never went through a marriage ceremony. We have been living in common-law relationship since 1931." *fn6"

 3. According to Della's undated "Statement Of Claimant" (Exh. 17), she declared (125):

 "I and Callahan [sic] McSweeney began living together as husband and wife in April 1928. * * * we became husband and wife in 1928." *fn7"

 4. According to Della's "Statement Of Claimant" (Exh. 18), dated February 20, 1963 (127-130), she and Callaghan "began living together in 1928" (127). As to "1931", she said: "The interviewer who spoke to me originally must have misunderstood. I never said 1931." (127). *fn8"

 5. According to Della's letter of June 11, 1963 (Exh. 7), she and Callaghan "lived and worked ...

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