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Peck v. Peck

8 Abb. N. Cas. 400 Court N.Y.C.P. English

Delivered by Larremore, J.

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p. 400
PECK v. PECK.
N. Y. Common Pleas; Special Term,
January, 1881.

Headnote

Divobcb.—Leave to Re-mabby.
A defendant against whom, a divorce on the ground of adultery was granted under the Revised Statutes (2 B. S. 146, § 49) may be granted, by the court, leave to marry again under the act of 1879 (L. 1879, p. 231, c. 164, as amended by M. p. 505, c. 281),—allowing such leave after the lapse of five years, and proof that defendant’s conduct has been uniformly good, and of plaintiff’s marriage,—-notwithstanding section 1,761 Code of Civil Procedure, which revises and reenacts the prohibition of re-marriage contained in the original section 49 of the Revised Statutes, without connecting with it the provision of the acts of 1879.
It seems, that the exception of the amended section 49 from the Repealing Act (L. 1880, p. 368, c. 245) had the effect to .modify section 1,761, by preventing the disqualification for re-marriage from becoming operative.[1]
Mrs. Peck recovered a judgment of divorce against her husband, and, she having re-married, the husband now applied for leave to re-marry. The application was on petition presented on notice to plaintiff, subsequent to September, 1880, when chapter XV. of the Code of Civil Procedure took effect.
H. E. Farnsworth, for the motion.

On April 10, 1874, a decree of absolute divorce was granted in this action in plaintiff’s favor, in pursuance of article 3, section 1, chapter 8, part 2 of the Revised Statutes, whereby the defendant was prohibited from marrying again during the life of the plaintiff. She re-married on May 10, 1878,

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and is now living in the marriage relation in the city of New York.

By section 49 of chapter 321 of the Laws of 1879, the statute above referred to was amended by-allowing a defendant found guilty of adultery in a divorce suit, after the expiration of five years from the rendition of judgment therein and re-marriage of the plaintiff, to make application to the court for a modification of such judgment, upon satisfactory proof of the facts above stated, and also of the fact of defendant’s good conduct since judgment was rendered. This act took effect immediately.

Such application and proofs have been produced herein, and it would appear that defendant is entitled to the relief sought. The plaintiff has had due notice of this proceeding, and makes no objection thereto. It remain's to consider whether or not any legal impediment is interposed by section 1,761 of the Code of Civil Procedure (L. 1880, c. 178).

This section would seem to restore the prohibition as to re-marriage by defendant during the life-time of the plaintiff, and is apparently inconsistent with section 49 of the Revised Statutes, as amended by chapter 321 of the Laws of 1879. If these statutes were the only guide to their own construction the conclusion would follow that the latest utterance of the legislature must control, and the former act would be repealed by implication (Livingston v. Harris, 11 Wend. 329 ; Warrington v. Trustees of Rochester, 10 Id. 547; People ex rel. Foster v. Bell, 46 N. Y. 57 ). But the legislature has not left us in doubt upon this subject, for at the same session in which it passed section 1,761 of the Code of Civil Procedure, it also, on May 10, 1880, enacted a repealing act, which expressly excepts section 49 of chapter 321 of the Laws of 1879.

For the purpose of determining the effect of the act comprising the Code of Civil Procedure, upon other

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acts, and. the effect of other acts upon it, it was therein especially provided that ‘ this [that] entire act is deemed to have been enacted on the sixth day of January, in the year 1880, and all acts passed after the last mentioned date are to have the .same effect as if they ■were passed after this act” (Code Civil Pro. § 3,355).

Moreover, said act, comprising such Code of Civil Procedure, was not returned by the governor within the time prescribed, and it became a law without his signature on May 6, 1880 ( 2 L. 1880 , § 1), whereas the repealing act appears to have been approved by the governor, May 10, 1880 ( 1 L. 1880 , § 367), and thereby became the later act.

I cannot disregard the manifest intention of the legislature as expressed by the repealing act. Repeals by implication are not favored, and acts by the governing power not absolutely inconsistent or repugnant should be construed in harmony with each other (Rex v. Justices of Middlesex, 2 Barn. & Adolph, 818; Viner Abr. 575, 132; McCartee v. Orphan Asylum, 9 Cow. 437 ; Mayor v. Walker, 4 E. D. Smith, 258; Wallace v. Bassett, 41 Barb. 92 ; Smith v. People, 47 N. Y. 330 , 333; Heckmann v. Pinkney, 6 Abb. New Cas. 371, affirmed by Court of Appeals; Bowen v. Lease, 5 Hill, 221 ; People v. Deming, 1 Hilt. 271; Van Rensselaer v. Snyder, 9 Barb. 302 ; Hayes v. Symonds, Id. 260; Powers v. Shepard, 48 N. Y. 540 , 544).

Section 1,761 of the Code of Civil Procedure and said ■repealing act both took effect September 1, 1880 (Code, .§.3,356 ; 1 B. 1880 , c. 245), so that said section containing the disqualification upon re-marriage never became operative law except as modified by said repealing act.

The defendant’s right to the relief sought herein existed prior to September 1, 1880 ; it was saved by the repealing act; it is not necessarily inconsistent with or repugnant to section 1,761 of the Code, and this application should be granted.

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