Randazzo v. Roppolo — 105 N.Y.S. 481

Majority

p. 481

RANDAZZO v. ROPPOLO et al.

(Supreme Court, Trial Term, Kings County.

July 14 1906.)

Headnote

Maebiage—Kbaud—Relief .

Where defendant went through the form of a marriage ceremony with a man impersonating plaintiff, plaintiff, though not entitled to an annulment of the certificate of marriage filed with the bureau of vital statistics, nor to an annulment of the marriage, was entitled to a judicial determination that he was not at the time and place stated in the certificate married to defendant, and to an injunction restraining her from claiming to he his wife.

Action by Giacomo Randazzo against Francesca Roppolo and another. Judgment for plaintiff.

Roy, Watson & Naumer, for plaintiff.

John J. Delany, Corp. Counsel, for defendants.

Here a base fraud has been attempted by the woman defendant, Francesca Roppolo, against the plaintiff, and he seeks to be relieved from the possible consequences thereof. He and the woman defendant, it appears, had been acquainted, and she commenced an action against him to recover damages because of an alleged breach of promise of marriage. Thereafter, with a man whose name does not appear, but who was not the plaintiff, she went through the form of a marriage ceremony; the man personating the plaintiff, giving the plaintiff’s name and other facts in attempting to identify himself as the plaintiff. It appears that the woman gave the man $10 for so doing, and thereafter the priest performing such marriage ceremony filed his certificate thereof with the bureau of vital statistics, and thereupon the woman obtained a transcript of such record and caused the same to be lodged and filed with the authorities in the province of plaintiff’s birth in Italy.

The only purpose, as against plaintiff, for so doing, would seemingly be that the woman might claim at some time in the future to be plaintiff’s wife, or his widow after his death. This should not be permitted, and since the marriage, as between the woman and the man so impersonating the plaintiff, is legal, the certificate as filed should not be annulled; but she should not' be allowed at any time to pose as or to claim to be plaintiff’s wife, or as his widow in the event of his death, or to succeed to any rights in either event. There was no marriage as between plaintiff and the woman defendant, and hence there can be no annulment; but he is within his rights under his prayer for judgment in seeking to have it judicially determined that he was not at the time and place stated in the alleged certificate married to her, that she be restrained and enjoined from posing as or claiming by reason of such certificate that she is his wife, and, further, that a note be indorsed upon the margin of such original certificate calling attention to the decree to be entered herein.

Judgment accordingly for plaintiff, with costs as against the woman defendant only.