Gall v. Gall — 12 N.Y. St. Rep. 604

Majority

p. 604

Amelia Gall, Resp’t, v. Charles F. Gall et al., App'lts.

(Supreme Court, General Term, Second Department,

Filed December 13, 1887.)

Headnote

1. Marriage—By habit and repute—When proven

On the trial of an action for admeasurement of dower brought by the plaintiff, who claimed to be the widow of one Joseph Gall, deceased, the plaintiff proved that said Gall had stated to his business partner that he had. taken legal advice, and according to the law of this state he was married. It was also shown that he had made declarations to his neighbors to the effect that plaintiff was his wife; that he had purchased a house and moved all his personal effects there, and spoke of plaintiff and their children who lived there as his family, and their mutual residence as his “house.” Held, there was sufficient evidence to sustain a verdict of marriage by habit and repute

2. Same—When marriage void on account oe another wife being ' ALIVE.

It was shown that plaintiff had been previously married to-one Jarmann, but that at the time of such marriage Jarmann had a wife living, whom he had not seen for over five years, but that he at the time made no endeavor to find out whether his wife was living Held that the plaintiff was not the wife of Jarmann, and that the marriage of plaintiff with him was void.

Appeal from an interlocutory judgment entered upon a verdict in favor of plaintiff upon a trial before a jury at the Kings county-circuit, and from an order denying a motion for a new trial. The action was brought for the ad-measurement of dower. One of the witnesses produced by the plaintiff was Charles Lembke, who was when Joseph Gall died, his partner, and had been since 1879; he had known him for about thirty years, lived within a few blocks of him and on the same street; dined with him and the plaintiff frequently at his house, and when Gall was taken with the illness from which he died, Lembke delivered messages to the plaintiff from Gall as to his condition.

Before the birth of the second child, and after the birth of the first, Joseph Gall told the witness he was not going to Europe this year, because he expected an increase in the family. I then asked him if he was legally married. He then said he took legal advice on this matter, and accord-ding to the law of this state he was married. That he did. not desire to have a ceremony performed, because he did not care to make his private affairs public. The deceased bought a house, in which he lived, for his wife. That he resided permanently in Brooklyn, at 990 Lafayette avenue.' That when he was taken sick he intrusted the witness with messages to his “folks.”

It was also shown that said Joseph Gall presented a locket with the inscription “J Gall” to the daughter of him, and the plaintiff and this same Lembke testified that he said I am married to Amelia. There was also evidence

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showing that the deceased had introduced plaintiff to neighbors and acquaintances as his wife.

A. Simis, Jr., for resp’t; S. G. Barnard, for app’lt Gall; George B. Morris, for other app’lts.

It will not be profitable to discuss the testimony at length. It was to some extent conflicting, but the jury have settled the questions of fact in favor of the plaintiff, and it is entirely safe to say that there is no such preponderance of evidence in favor of the defense as to require the interference of the court.

On the contrary, some of the testimony introduced by plaintiff, if credited by the jury, would scarcely permit any other conclusion than that to which the jury arrived

The testimony of the business partner, that when he inquired of Gall if he was actually married, he replied that he had taken legal advice, and, according to the law of this state, he was married, left the jury little to decide upon that branch of the case if they believed the witness was speaking the truth.

The declarations made by Gall to the neighbors, though not so decisive, are abundantly sufficient to support the verdict, and are more distinct and unequivocal than has been the case in many trials where similar verdicts have been approved.

The testimony of some of the witnesses that he denied the marriage, do not destroy the force of the affirmative evidence.

The fact that a man of wealth denies to his acquaintances that he has married his cook, may be accounted for in a variety of ways.

The way Gall accounted for it was that he did not care to make his private affairs public.

So the purchase of the Brooklyn house and moving all his personal effects there, his speaking of the plaintiff and her children as “ his family ” and their mutual residence as his “home” were strong evidence of a marriage, upon which the jury might well base a verdict.

Upon the question of the plaintiff’s marriage to Jarmann there is sufficient evidence to sustain the verdict.

Jarmann’s former wife was living, and it was quite clear that had he desired to know that fact he could easily have learned it.

The suggestion that to find Jarmann had actual knowledge of her being alive, is to find that he was guilty of bigamy, is fairly answered by the evidence of Jarmann himself, that he believed the separation between them wrought an actual divorce and entitled him to marry again.

That belief affords corroboration to the statement of the

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plaintiff that Jarmann told her that his former wife was living, but she could make him no trouble as he had a divorce from her.

Jarmann denies that conversation, but the fact that the wife was living, that numerous persons of his acquaintance;, residing in his neighborhood, had the knowledge of her existence, and that he did in fact believe his separation to be a legal divorce, are sufficient to authorize the jury to give credit to the testimony of the plaintiff as to the statement made to her at the time of marriage. They may well have believed that Jarmann had forgotten a conversation which would interest him much less than it would the-plaintiff, and which there was no reason to impress upon Jus memory.

The jury were justified by the evidence in believing that Jarmann knew his first wife to be living at the time he married the plaintiff, in which case his second marriage was void.

The exceptions to the reception of evidence do not require discussion.

The verdict is sustained by me evidence, am. the judgment should be affirmed with costs.

Barnard, P. J., and Dykman, J., concur.