People v. Rosenzweig — 96 N.Y.S. 103

Majority

p. 103

(47 Misc. Rep. 584)

PEOPLE v. ROSENZWEIG.

(Court of General Sessions, New York County.

June, 1905.)

Headnote

1. Husband and'Wife—Abandonment of Wife.

Where, after marriage by a Jewish rabbi in Austria, a husband leaves his wife and comes to New York, and fail» to send for her, and in a proceeding for nonsupport his only defense is the verbal statement of his counsel that a Jewish marriage in Austria is not valid, unless accompanied with a civil marriage, a judgment finding him a disorderly person for failure to provide for his wife and child will be affirmed.

2. Statutes—Foreign Countries—Evidence.

The written law of a foreign country must be proved by the production of the duly authenticated law, or by other authorized publications, duly proved, of such law.

[Ed. Note—For cases in point, see vol. 44, Cdnt. Dig. Statutes, § 891.]

p. 104

Appeal from Judgment of a City ■ Magistrate.

David Rosenzweig, alias Morris Michaelson, was convicted of abandonment, and appeals.

Affirmed.

Henry R. Repper, for appellant.

John J. Delany, Corp. Counsel, and Herbert M. Stiefel, Asst. Corp. Counsel, for the People.

This is an appeal from the judgment of a city magistrate in an abandonment case, whereby the respondent is adjudged a disorderly person and ordered to pay the sum of $5 per week for the support of his wife, or in default of a bond of $206 to be confined in the New York county workhouse for a term of six months.

The appeal is wholly without merit. It appears, from the testimony submitted to the court, that the appellant was married to the respondent according to the rites and ceremonies of the Jewish law in Austria, in the province of Galicia, on or about the 15th day of September, 1902; that the marriage was celebrated by a rabbi in the presence of several members of the wife’s family at her mother’s house, and was proven before the. magistrate by several' witnesses who were present, by the respondent herself, and by experienced persons of the Jewish faith, who. testified as to the facts; that the celebrant was a rabbi, and had full authority to celebrate a ceremonial or religious marriage. It was shown before the magistrate, and not denied, that the marriage had taken place as claimed; that the appellant lived with his wife abroad about four months, then left her and came to America, promising to send for her. When he left her she was then pregnant. Some time later, after her child was born, she came to this country to seek her husband, and succeeded at last, after considerable search, in finding him. He, with cool affrontery, denied that he had ever seen her, much less that he had ever married her. She called upon him to provide for her, which he positively refused to do. He did not deny his identity before the magistrate, which was, however, abundantly proven by other testimony. His defense consisted, however, of a mere verbal statement, made by his counsel, who was not even under oath, that in Austria a Jewish or religious ceremonial marriage is not valid, unless it is followed or preceded by a civil marriage. The magistrate very properly gave to this information no attention whatever, but satisfied himself that a marriage had duly taken place.

The method of proving a foreign law is fully set forth in section '942, Code of Civil Procedure. As I have said, there was no evidence whatever adduced or offered before the magistrate tending to establish any such law, written or unwritten, in the empire of Austria. The unwritten law of a foreign country may be proved by expert testimony ; but the written law, in this state at least, must be proved by the production, duly authenticated, of the law itself, or by the reports or other authorized publications, duly, proved, of such law. And even then it would be a question whether, by the comity of nations, a law in derogation of the rights of a citizen or subject, as recognized in

p. 105

this country and throughout the world for centuries, except where abridged, with or without good reason by the civil power, would be received in testimony for the, purpose of vitiating a legal contract and accomplishing a fraudulent purpose.

Judgment affirmed.