#### Early B. McCullen, Appellant, *v.*Anna F. McCullen, Respondent.

First Department,

May 29, 1914.

Husband and wife — annulment of marriage —remarriage while former husband living— subsequent annulment of former marriage does not validate second marriage — statute construed — pleading—complaint

Where a woman remarries while her first husband is still living, the second marriage is absolutely void, and will be declared to be so in a suit brought by the second husband, although after the second marriage the first marriage was annulled, on the ground that it was induced by the false representations of the first husband.

The second marriage is not validated by ratification after the annulment of the first marriage merely because the parties thereto continue to cohabit as man and wife, if there was no new solemnization of the second marriage in the manner required by the statute.

The statute distinguishes between marriages which are absolutely void and those which are merely voidable; the former are void from their *600inception, and the parties thereto may remarry, while the latter are void only from the time the invalidity is declared by a court of competent jurisdiction, and there is no right to remarry in the absence of such decree.

Where the defendant does not appear in an action to annul a second marriage on the ground that the husband by the former marriage is still living, the plaintiff need merely allege and prove the former marriage, that the former husband was living at the time of the. marriage with the plaintiff, and that the former marriage has not been annulled or dissolved. It is not. necessary for the plaintiff to negative by allegation, or proof, the exceptions or provisos contained in section 6 of the Domestic Relations Law.

Appeal by the plaintiff, Early B. McCullen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of February, 1914, upon the decision of the court after a trial at the New York Special Term. The judgment dismissed the complaint.

*Dix W. Noel,*for the appellant.

No appearance for the respondent.

Laughlin, J.:

This action was brought to have a marriage formally celebrated between the parties on the 28th day of February, 1907, annulled on the ground that the defendant at the time of the celebration thereof had a husband living. On the 22d day of November, 1902, the defendant was married in due form to one Fickbohn in the city and county of New York, and the contract of marriage, duly signed, witnessed and acknowledged, was duly filed in the office of the clerk of the city and county of New York within six months thereafter as required by section 11 of the former Domestic Relations Law in force at that time. (Gen. Laws, chap. 48 [Laws of 1896, chap. 272], § 11, as amd. by Laws of 1901, chap. 339.) After the marriage between the parties hereto, and on the 31st day of August, 1908, in an action in the Supreme Court of this State, the defendant’s former marriage was duly annulled by judicial decree on the ground that the defendant herein was induced by fraud perpetrated upon her by said Fickbohn to enter into said marriage contract. The learned trial court in this action proceeded upon *601the theory that the final decree in the former annulment action, although made and entered after the marriage between the plaintiff and defendant, was a judicial determination that the defendant’s former marriage was void at its inception and was never binding upon her, and that she, therefore, was competent to marry the plaintiff.

If the annulment of the defendant’s former marriage had been upon the ground that it was absolutely' *void,*and not merely *voidable,*the decree could be sustained, for where a marriage is void, although the Legislature has authorized the court in the interest of the public to enter a formal decree declaring it void, it is void without any decree of the court, and forms no obstacle to the right of either party to marry again. (Dom. Rel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], §§ 6, 7; *Stein*v. *Dunne,*119 App. Div. 1; affd., 190 N. Y. 524; *Price*v. *Price,*124 id. 589; *Pettit*v. *Pettit,*105 App. Div. 312.) There is, however, a clear distinction made by our statutory law, and by the decisions thereunder, between *void*and *voidable*marriages. A marriage is absolutely void under our statute only when one of the parties has a husband or wife by a former marriage living, and in circumstances which it is not material to consider on this appeal. (Dom. Rel. Law of 1896, § 3; Dom. Rel. Law of 1909, § 6.) There is no evidence that the defendant had a husband living at the time she married Fickbohn. The only question with respect to her former marriage appears to have been with reference to the representations made by her former husband to induce her to enter into it, and that is the sole ground upon which it was annulled. Our statutes authorize an action for the annulment of a marriage on the ground of fraud; but such marriages are classed by our statute as *voidable,*and it is expressly declared that they are void *only*from the time their nullity is declared by a court of competent jurisdiction. (Dom. Rel. Law of 1896, § 4; Dom. Rel. Law of 1909, § 7.) True it is provided in section 1754 of the Code of Civil Procedure that a final judgment annulling a marriage rendered during the lifetime of both parties “ is conclusive evidence of the invalidity of the marriage, in every court of record or not of record, in any action or special proceeding, civil or criminal; ” but that is *602merely a rule of evidence with respect to the effect of the decree as evidence. It was not intended thereby to declare a rule of law with respect to whether the marriage should be deemed invalid from the date of its celebration or from the date of the decree, and those matters were left to be regulated by other statutory provisions, as they are regulated by the provisions of the Domestic Relations Law, to which reference has been made, whereby it appears that where the marriage was absolutely void there has been no attempt on the part of the Legislature to validate it for any period, and the decree of the court merely formally declares in the interests of society what the law had prescribed in advance, namely, that the marriage was absolutely void, whereas, in the case of a voidable marriage, the Legislature deemed it wise likewise in the interests of society to recognize its validity until declared void by judicial decree. It follows, therefore, that at the time of the celebration of the marriage between the parties hereto the defendant had a husband living and her former marriage was in full force and effect. She, therefore, could not then lawfully marry the plaintiff or another. The marriage between the plaintiff and the defendant was, therefore, absolutely void, and it could not be validated by ratification after defendant’s former marriage was annulled, although the parties could then have lawfully married. Since by statute it is now required that a marriage shall be formally solemnized or the contract shall be in writing (Dom. Rel. Law of 1909, § 11, as amd. by Laws of 1913, chap. 490; Id. §12), no new marriage could be inferred even if, as one of them testified, the parties cohabited as husband and wife after the rendition of the decree of annulment. (See *Pettit*v. *Pettit, supra.)*

There was no appearance in this action for the defendant. The plaintiff merely alleged the former marriage between the defendant and Fickbohn; that Fickbohn was living when the marriage between the plaintiff and defendant was celebrated, and that the marriage between the defendant and Fickbohn had not been annulled or dissolved. All of these facts were sufficiently proved. I am of opinion that it was not necessary for the plaintiff to negative by allegation or proof the exceptions or provisos contained in section 6 of the Domestic Eela*603tions Law which would render inapplicable to the marriage between the defendant and Fickbohn the statutory provision declaring the marriage absolutely void where one of the contracting parties had a husband or wife by a former marriage living. (See *Stein*v. *Dunne, supra.)*The findings made by the trial court are sufficient to entitle the plaintiff to an interlocutory judgment for the annulment of the marriage.

It follows that the judgment should be reversed and the decision modified by striking therefrom the conclusion of law and substituting therefor a conclusion to the effect that the plaintiff is entitled to an interlocutory judgment for the annulment of the marriage in accordance with the provisions of section 17*74*of the Code of Civil Procedure and directing the entry thereof.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment reversed and decision modified as indicated in opinion. Order to be settled on notice.