Stein v. Dunne

The plaintiff sues for breach óf 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 Stein, 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 not 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, Stein 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 required 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 Julius 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 td 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

The objection to the form of the reply is extremely technical. The domestic relations law (section 3) declares that:

“A marriage is absolutely void If contracted by a person whose husband or wife by a former marriage is living, 'unless either: (1) such, former marriage has 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 be living during that time.”

The allegation of the reply respecting Julius Stein’s former marriage is 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.”

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 relations law, is to be construed as an exception, and that, since exceptions must be pleaded, the reply should have alleged specifically that Julius Stein’s former marriage had not been dissolved for a cause oth•er than his adultery, that his former wifé 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 to 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

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., concur.

(dissenting). The plaintiff brings this action to recover damages for breach of promise of marriage. She alleges in her complaint that:

“Heretofore, and between March, 1902, and October, 1904, at the city of New York, in consideration that the plaintiff, who then was and still is sole and unmarried, would marry the defendant, the said defendant promised and agreed to marry the plaintiff at a time thereafter to be mutually agreed upon, and within a reasonable time.?

The breach of this contract is set forth, and the plaintiff demands judgment in the sum of $50,000. The answer of the defendant denies the material allegations of the complaint, and sets up three separate and distinct defenses, based upon a prior marriagp of the plaintiff with one Julius Stein, and that the plaintiff now has actions pending in the courts of this state for separation and for the nullification of such marriage. The plaintiff replied to these defenses, setting up that the said Julius Stein, her alleged husband, had been duly married to another woman, who was living at the time of her alleged marriage to the said Stein, and that no divorce or annullment of said marriage had been obtained; that the same was in full force and effect; that by reason thereof this plaintiff never became, was, or is the lawful wife

The defendant demurred to these replies upon the grounds that they were insufficient in law upon the face thereof. This demurrer has been sustained, and the plaintiff appeals to this court. The allegation of the complaint that the plaintiff is sole and unmarried is denied by the defendant; but the allegation of her reply, that at the time of her alleged marriage to Stein the latter was married to another woman, who was then living, and that no divorce or annulment of said marriage had been obtained at the time of the ceremony between the plaintiff and said Stein, stands admitted by the demurrer. Section 3 of the domestic relations law (chapter 48 of General Taws) provides that:

“A marriage is absolutely void' if contracted by a person whose husband or wife by a former marriage is living, unless either (1) such former marriage has 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 be living during that time.”

Assuming, without deciding, that the reply is a relevant pleading in this action, its effect, if supported by evidence, would simply tend to establish the allegation of the complaint that the plaintiff is “sole and unmarried." The important question to be determined upon demurrer is whether the. allegations of the reply are sufficient in law to show that the plaintiff was “sole and unmarried” at the time of the alleged offer of marriage on the part of the defendant. The demurrer admits all of the facts stated, but not the conclusions of law. At the time of the ceremonial marriage of the plaintiff with Julius Stein, the latter had been “duly married to- another woman, who was living at the time of her alleged marriage to the said Stein, and that no divorce or annulment of said marriage had been obtained.” The allegation that this alleged prior marriage was “in full force and effect” is but a conclusion to be drawn from the facts. The statute provides, in effect, that the prior marriage is not in “full force and effect” if it transpires that the former marriage has been annulled or dissolved for a cause other than adultery—if it is shown that the former husband or wife has been absent for five consecutive years then last past, without being known to the other party to have been living during that time. Section 3, Domestic Relations Law. The reply here under consideration does not allege that the former wife has not been finally sentenced to imprisonment for life, nor yet that she has not absented herself for a period of five years prior to the second marriage, without Stein knowing that she was alive during that time; and, without these facts being admitted, how are we to know that the ceremonial marriage with Stein was absolutely void? The rule is well settled that an exception in a statute must be negatived in pleading, while a proviso need not be. An exception exempts something absolutely from the operation of the statute by express ’ words in the enacting clause. A proviso defeats its operation conditionally. An exception takes out of the statute something that otherwise would be part of the subject-matter of it. A proviso avoids them by way of 'defeasance or excuse. Row

The judgment should be affirmed, with costs.

(dissenting). I am of opinion that the interlocutory judgment sustaining the demurrer to the reply should be affirmed. Assuming that the plaintiff was competent to contract a second marriage without first having her former marriage to Stein annulled, I think it was incumbent upon her to allege all facts essential to show that her former marriage was void. The Legislature of the state has undertaken to prescribe by statute what constitutes a void arid what constitutes a voidable marriage, and therefore the statutory law on this subject supersedes the common law. It has not been declared by statute that every marriage by a party who has a former husband or wife living shall be void. The Legislature has merely declared that such a marriage shall be void unless one of three facts existed. If the former marriage was annulled or the parties were legally divorced, or the former wife of Stein was duly sentenced to imprison

Moreover, I am of opinion that, even though the reply negatived the facts which would have taken the former marriage of Stein from the category of void marriages, still, the plaintiff’s ceremonial marriage to Stein never having been annulled by a court of competent jurisdiction, her contract for marriage with the defendant was void upon grounds of public policy. No case in point upon the facts has been cited or found. The cases in which it has been adjudged that a second marriage was valid without a decree adjudging the first marriage void have arisen between the parties to a second consummated marriage or concerning the issue of such" marriage, where the court was compelled to decide the status of the parties or of their issue, after a second ceremonial marriage, followed by cohabitation. In all of the text-books and decisions, the impropriety of the second marriage without the annullment of the first is recognized. In the case at bar not only would society be offended by requiring the defendant to perform his contract to marry the plaintiff, or, what is tantamount thereto, because it involves the approval of the contract, to .pay damages for his failure to do so, but such a decree of the court would result in a serious public scandal that would likely reflect not only on the defendant, but on any issue of the marriage. In her reply plaintiff informs us in effect that her relations with Stein were meretricious because the marriage ceremony between them was a nullity, owing to the fact that he had a wife living. If that be so, assuming the allegations to be sufficient to show the invalidity of her marriage to Stein probably if she and the plaintiff voluntarily performed their marriage contract, the marriage would be valid, but it would always be subject to attack, and the defendant and his issue might be called upon to produce proof of the invalidity of the former marriage at some future period so remote that it might be difficult or impossible to

I therefore vote to affirm the interlocutory judgment.