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Wander v. Wander

111 A.D. 189 Court First Department, Decision date 1906-02-09 English

Delivered by Clarke, J.:

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Malca Wander, an Infant, by Leon Arenson, her Guardian ad Litem, Respondent, v. Joseph Wander, Appellant.
First Department,
February 9, 1906.

Headnote

Annulment of marriage — marriage annulled when wife is under age of ■ legal consent — woman may sue under section 1743 of the Code of Civil Procedure — decree — short form not proper.
An action by a woman to annul a marriage lies under section 1743 of the Code of Civil Procedure when the plaintiff had not at the time of marriage attained the age of legal consent set at eighteen years by the Domestic Relations Law, article 1, section 4. This is so although the parties have cohabited and the parents of the plaintiff consented to the marriage.
A woman is not compelled to bring her action under section 1743 of the Code of Civil Procedure.
In such action the short form of decision is not proper since the amendment to section 1033 of the Code of Civil Procedure made by Laws of 1903, chapter 85, and such short decision will be sent back for correction to conform it to the requirements of said section as amended.
'Appeal by the defendant, Joseph Wander, from an interlocutory judgment of the Supreme Court in favor of'the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of April, 1905, upon the decision' of the court, rendered after a trial' at the New York Special Term, annulling the marriage of the plaintiff and the defendant.
Louis B. Boudin, of counsel [Boudin & Liebman, attorneys], for the appellant.
J. Philip Berg, of counsel [David Sternlicht, attorney], for the respondent.

The plaintiff, by her guardian ad litem, brings this action to procure a decree annulling her marriage with the defendant. The complaint alleges, and the proof satisfactorily establishes, that she was born on the 18th day of February, 1888. A ceremonial marriage took place on the 16th day of August, 1903, in the presence of her family and about 300 invited gue.sts. She was at that time fifteen years of age. The plaintiff and defendant ceased to live together in the latter part of November, 1903. She brings her

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action, under section 1743 of the Code .of Civil Procedure which pro; vides that “an action may also be. maintained to procure a judgment declaring a marriage, contract void, and annulling the marriáge for either oE' the following causes existing-at the time of. the marriage: 1. That one or both of the' parties had not attained the age of legal "consent.” The Domestic Relations Law (Laws of 1896, chap. 272) provides in article 1, under' the heading “ Unlawful Marriages,”-in section 4 that “a marriage is void from, the' time its nullity is declared by a court of competent jurisdiction-if .either party thereto ■ -f * * is under the age of legal consent, which is "eighteen years. *• * * Actions to annul a void or voidable marriage may be brought only as provided in the Code of Civil Procedure.” The learned counsel.for the defendant contends that section 1743 of tlie, Code does not apply; that the action by the woman, must be brought, under section 1742 of the Code; and that as this marriage did take place with “ the consent", of her father,- mother, guardian or -other person having the legal charge of her person” and was “ followed by consummation or cohabitation” it -was no.t unlawful or voidable and that she is. not entitled to a decree of annulment. In brief, that nq action by the wife lies, merely because the marriage took place before she arrived at the age of legal- consent. ( This precise question was before this court in Conte v. Conte ( 82 App. Div. 335 ). _ Mr. Justice Laughlin, writing the ¿.pinion qf an unanimous court, upon'-a careful .¡examination of the various provisions of' law affecting the question of actions for the annulment of the marriage, reached the conclusion that section 1743 of the Code did apply,,and that such an action was maintainable. This decision was followed.' by the learned Appellate Division in .the fourth department in Earl v. Earl ( 96 App. Div. 639 ). We have again considered the mah ter, and find no reason to depart from the views laid down. W.e, therefore, would affirm this judgment 'were it not for a technical defect. '

. The learned trial justice signed a decision in the form known as. the short- form of decision, permitted before- the amendment of section ld22 of,the Code made by chapter.85 of the Laws of .1903.[1] That section now provides: “ The decision of the court, or the report of a referee, upon- the 'trial of the whole issues of fact, must

* See Laws of 1895, chap. 946, amdg. Code Civ. Proc. § 1022.— Rep.

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state separately the facts found, and the conclusions of law, and direct the judgment to be entered thereon, which decision so filed shall form part of the judgment roll.” “ The power to formulate the decision upon the issues, and upon which the judgment must be entered, rests exclusively with the trial tribunal.” (Cutter v. Gudebrod Brothers Co., 168 N. Y. 512 .)

The judgment must be vacated. “ The trial court may then make and file a decision disposing of the issues and directing the proper judgment,in accordance with the provisions of section 1022 of" thé Code of Civil Procedure.” (Electric Boat Co. v. Howey, 90 App. Div. 410 .)

The judgment should be reversed, and matter remitted to the trial justice to make and file a decision in accordance with section 1022 of the Code, without costs to either party.

O’Brien, P. J., Ingraham, Laughlin and Houghton, JJ., concurred. i

Judgment reversed and matter remitted to the trial justice as directed in opinion, without costs. ■

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