Steimer v. Steimer

This is a motion upon an order to show cause, returnable in special term, part 3, and referred by the justice then presiding to me for determination why the. judgment herein, entered on the 10th of September, 1901, annulling a marriage, should not be vacated and set aside as being fraudulent, collusive, in violation of the statute, and contrary to law. The affidavit upon which the order to show cause was granted was made by the mother of the defendant, a girl of 19; and, while the affiant has no other standing in court than any other stranger to the action, yet the court in such proceedings may act upon the suggestion of any amicus curise, or even sua sponte. The general term held in E. B. v. E. C. B., 28 Barb. 299 , in a case similar to the one at bar, on appeal from an order denjdng a petition presented by the mother of an infant defendant, praying that the decree annulling the marriage between the plaintiff and the defendant might be opened, that, while the mother had no standing as a party, the court would hear her communication as an amicus curiae, and that, “in all actions brought to obtain a dissolution of the marriage contract, it is the duty of .the court scrupulously to guard the proceedings from being used by the parties collusively, and not to suffer a judgment thereof without being fully satisfied that the cause specified in the statute really exists,” and that “whenever facts are placed before the court which create a suspicion that there is collusion between the parties, especially when the defendant is a female under the

The plaintiff, now 46 years of age, became acquainted with the defendant when she was about 14 years of age, and had intercourse with her a number of times. In September, 1900, when she was T7 years of age, she was discovered by her mother to be enceinte. She told her mother that the plaintiff was responsible for her condition, that he had promised to marry her, and that she had been in the habit of meeting him for several months at various hotels. The mother took the daughter to see the plaintiff, and demanded that he keep his promise to her. Two days after that interview, on September 24, 1900, the mother took the daughter to lier husband’s attorney, and the girl repeated to him that plaintiff was responsible for her condition, when and where she had met him, and the promises he had made. On the following day, plaintiff, upon request, called at said attorney’s office, admitted his relations with defendant, and asked what he was expected to do. He was told the only reparation he could make was marriage. He ridiculed this suggestion, and stated that the girl had slept for years with her father as his mistress. He was told to employ a lawyer with whom matters could be discussed. This he promised to do, but called again, and stated that he did not require a lawyer, asked for an interview with the defendant, obtained it, and subsequently, on October 5, 1900, plaintiff and defendant were married by a minister, and went to plaintiff’s apartment to live. There the child was born on the 21st of February, 1901. On the 18th of March, 1901, the complaint herein was verified, which alleged that plaintiff was induced to marry defendant, who claimed, asserted, and pretended that she was a virtuous girl, and that she had never had sexual relations with any other person than with the plaintiff, and that she was then pregnant by reason of sexual intercourse with him; that except for such claim he would not have married her; that he relied upon such pretense, and, acting under the belief of the truth thereof, married her; that said claim, etc., was absolutely false, and made to deceive and entrap him; that on or about March 10, 1901, he learned for the first time that defendant before her marriage had been intimate with one-, and that the child of the defendant was not the child of plaintiff, and that prior to such marriage defendant had lived in a state of frequent sexual intercourse with some other person than plaintiff; that since the discovery of these facts plaintiff had not cohabited with defendant,— and prayed that the marriage be declared to be null and void, and the child adjudged to be illegitimate. On April 22, 1901, an order was entered, on consent, referring the issues. The stipulation on which this order was entered was signed by plaintiff’s attorney and by an attorney for defendant. The referee makes an affidavit that the first hearing was on May r, 1901; that on that day there appeared before him plaintiff’s attorney, the plaintiff, and the defendant; that during the hearing the defendant told him that she was 18 years old January, 1901; that he asked her if she had informed her attorney that she was under 21., and she replied she had; that

“In an action brought, as prescribed In this article [article 1, tit. 1, c. 15; action to annul a void or voidable marriage], a final judgment, annulling the-marriage, shall not be rendered by default for want of an appearance or-pleading, or upon the trial of an issue without proof of the facts, upon,

which the allegation of nullity is founded. And the declaration or confession of either party to the marriage is not alone sufficient as proof; but other satisfactory evidence of the facts must be produced.”

In Chambers v. Chambers (Sup.) 32 N. Y. Supp. 876 , Mr. Justice Beekman, in refusing to confirm the report of a referee, in an action brought to annul a marriage, on the ground of an alleged previous marriage of the defendant, held that where the only proof of the previous marriage consisted of the declaration of the defendant, testified to by the plaintiff, and the marriage- register, purporting to contain an entry of the marriage in question, the statute (section 1753) was not satisfied. He said:

“The action is one of grievous character, and the judgment asked for should not be granted unless the proofs are competent, clear, and convincing, especially as there is a child by the marriage, whose status would be gravely affected by the action of the court.”

In the case at bar the record shows beyond question that no attempt was 'made to comply with the statute, and that there was no proof other than the alleged confession of the infant defendant. The fact that the plaintiff testifies that the defendant had previously confessed to him what she confessed in court added nothing to the character or weight of the confession itself. “A sentence of divorce will not be given upon the sole confessions of the parties. The foundation of the rule * * * is the fear of collusion and imposition ozr the court.” Lyon v. Lyon, 62 Barb. 138 ; Madge v. Madge, 42 Hun, 524 ; Fowler v. Fowler, 29 Misc. Rep. 670 , 61 N. Y. Supp. 109 ; Montgomery v. Montgomery, 3 Barb. Ch. 132 . Section 1750 of the Code provides:

“But a marriage shall not be annulled * * * on the ground of fraud, if it appears that, at any time before the commencement thereof [i. e. of the action] the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.”

The plaintiff swore in his complaint “that since the discovery of these facts the plaintiff has not cohabited with the defendant, and cannot longer live with or recognize the defendant as his wife, or allow her to preside in his household,” and he swore at the trial that he had not cohabited with the defendant after learning the facts, But he testified that before the marriage she said he was responsible for her condition, and then:

“Q. And what, if anything, did she tell you about having intercourse with any other person at that time? A. Well, she did make some such statement to me, that I really didn’t believe much about it at the time.”

And it appears that from the time he took her to his apartment to the present time she has lived and is still living there with him. In his own answering affidavit on this motion he says that she is remaining in the house "occupying the position of a housekeeper,—■ doing the cooking and the work of the house.” And in an affidavit tendered by him she says:

“I have remained In the same house, but not occupying the same room or one communicating with his, and acting entirely as his housekeeper or servant, taking care of the rooms, and cooking and serving his meals. He has kept no other servant.”

Motion granted, without costs.