Majority
In the case of Fearon v. Treanor ( 272 N. Y. 268 ) we decided that chapter 263 of the Laws of 1935 (Civil Practice Act, §§ 61-a, 61-i), which abolished civil actions to recover damages for alienation of affections, criminal conversation, seduction, and breach of promise to marry, is constitutional in so far as it applies to an action to recover damages for breach of promise to marry, but expressly limited our decision in that case to the issue then before us. In that case it was argued that the entire act was unconstitutional and void, as it deprived an injured person of a remedy for the enforcement of a property right existing at common law, and protected by the State Constitution. (N. Y. Const. art. I, § § 1, 6, 16.)
We placed our decision upon the broad ground that the Legislature, in dealing with the subject of marriage, has plenary power, as marriage differs from ordinary common law contracts and is subject to control and regulation by the State.
We are now required to determine one of the questions expressly reserved in the decision of that case, that is, whether the statute is unconstitutional in so far as it abolishes the right of action to recover damages in an action for alienation of affections and criminal conversation. While the decision of the exact question was expressly reserved in that case, the opinion points the
An action to recover damages for breach of promise to marry is based upon an agreement preliminary to marriage and an action to recover damages for alienation of affections and criminal conversation is founded upon the marriage relation itself. Bach has to do with the marriage status and each is subject to regulation and control by the State.
It has been expressly decided by the United States Supreme Court that marriage is not a contract within the meaning of the Federal Constitution which prohibits the States from impairing the obligation of contracts. (U. S. Const. art. I, § 10; Maynard v. Hill, 125 U. S. 190 .)
Marriage has been frequently referred to as a contract in judicial opinions, by text-writers and in statutes. Nevertheless, it is not a common law contract as generally understood. It has some of the attributes of such a contract, but contains many elements foreign to a common law contract. It may be lawfully entered into by parties under twenty-one years of age. It cannot be dissolved by consent of the parties. After marriage, the State imposes duties and obligations upon the parties entirely outside of the marriage agreement. The relation entered into by the parties is regulated by the State.
“ It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.” (Wade v. Kalbfleisch, 58 N. Y. 282 , 284.)
Not being a common law contract, the relation may be regulated, controlled and modified and rights growing out of the relationship may be modified or abolished by the Legislature without violating the provisions of the Federal or State Constitution which forbid the taking of life, liberty or property without due process of law. (N. Y. Const. art. I, § 6; U. S. Const. Fourteenth Amendment.)
At common law, the rights which a husband had in the affection and society of his wife were frequently denominated a property right. (Foot v. Card, 58 Conn. 1 .)
It is urged by respondent that the statute is in violation of article I, section 16, of the State Constitution as the right of action existed at common law in the Colony of New York before the adoption of our first Constitution. That section provides: “ Such parts of the common law * * * shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same.”
Article I, section 16, of the State Constitution does not prohibit the Legislature from correcting an evil growing out of the marriage relation by altering the provisions of the common law as it existed before the adoption of the Constitution. (Munn v. Illinois, 94 U. S. 113 , 134; 21 Cornell Law Quarterly, p. 677 ; 22 Virginia Law Review [Part 1], pp. 205, 216.)
A decision to the contrary, if carried to its logical conclusion, would result in a stagnation of law and be directly in conflict with many decisions of this court.
It is suggested that if the Legislature has authority to abolish the action for alienation of affections, it may also lawfully abolish actions for libel, slander and certain other actions, and that a decision holding the statute in question valid will be so construed. That question is not now before the court and we express no opinion in regard to it. The decision now made should not be so construed. Neither do we express any opinion as to the validity of the statute in so far as it abolishes an action for seduction.
Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.
Orders reversed, etc.
Cases cited
- Munn v. Illinois 94 U. S. 113 at 134 p. 23, p. 26
- Fearon v. Treanor 272 N. Y. 268 p. 23, p. 24
- Noble State Bank v. Haskell 219 U. S. 104 p. 23
- Holden v. Hardy 169 U. S. 366 p. 23
- Biddles, Inc. v. Enright 239 N. Y. 354 p. 23
- Oppenheim v. Kridel 236 N. Y. 156 p. 23
- Maynard v. Hill 125 U. S. 190 p. 23, p. 24, p. 25
- Home Building & Loan Ass'n v. Blaisdell 290 U. S. 398 p. 23
- Baker's Executors v. Kilgore 145 U. S. 487 p. 23
- Meister v. Moore 96 U. S. 76 p. 23
- Baumann v. Baumann 250 N. Y. 382 p. 23, p. 24
- People v. Brengard 265 N. Y. 100 p. 23
- Truax v. Corrigan 257 U. S. 312 p. 23
- Claim of Jensen v. Southern Pacific Co. 215 N. Y. 514 p. 23
- New York Central Railroad Co. v. White 243 U. S. 188 p. 23
- Mountain Timber Co. v. Washington 243 U. S. 219 p. 24
- Silver v. Silver 280 U. S. 117 p. 24
- Coler v. Corn Exchange Bank 250 N. Y. 136 p. 24
- People v. Charles Schweinler Press 214 N. Y. 395 p. 24
- Stubbe v. Adamson 220 N. Y. 459 p. 24
- In re People 264 N. Y. 69 p. 24
- Wade v. Kalbfleisch 58 N. Y. 282 at 284 p. 25
- Hanfgarn v. Mark 274 N. Y. 570 p. 27