Opinion
October, 1916.
Feinberg Gerson, for plaintiff.
No appearance for defendants.
This is an action to annul a marriage brought by the father of one Louis Greenberg who on April 22, 1916, intermarried with one Dora Axelrad, the marriage ceremony being performed by an alderman of the city of New York Prior to the marriage when the young people made application to the city clerk for a license which was granted, the age of the plaintiff's son, Louis Greenberg, was given as twenty-two years and that of his intended wife as eighteen years. As a matter of fact Louis Greenberg was not twenty two years of age at the time the license was issued, his real age being nineteen years. There is no proof that the parties ever cohabited as husband and wife.
The father's application is based upon the ground that the young man was under the age of twenty-one years when the license was issued and that he, the father, did not give his consent thereto. He maintains that such consent was necessary before a valid marriage could be contracted, and cites as an authority for his contention section 15 of the Domestic Relations Law, and subdivision 1 of section 1743 of the Code of Civil Procedure.
As I read the law in reference to actions to annul a marriage the plaintiff must fail in this application. Section 15 of the Domestic Relations Law, as amended by the Laws of 1912, chapter 241, enumerates the duties of the town and city clerks in regard to issuing marriage licenses and among other things provides: "If it shall appear upon an application of the applicants as provided in this section that the man is under twenty-one years of age, or that the woman is under the age of eighteen years, then the town or city clerk before he shall issue a license shall require the written consent to the marriage from both parents of the minor or minors."
This section pertains solely to the administration of the office where the license to marry is issued. The law specifically states that if it shall appear upon the application of the applicants that they are under the specified age the parents' consent is necessary, and consequently if the infant, as is the fact in this case, attests falsely that he is over the age of twenty-one years, the clerk has no right to refuse to issue the license as prescribed by the section quoted. The case of Kruger v. Kruger, 137 A.D. 289, is an authority for this construction, holding that section 15 of the Domestic Relations Law does not modify or change section 1743 of the Code of Civil Procedure, nor section 7 of the Domestic Relations Law.
The Domestic Relations Law, section 7, provides:
"Voidable Marriages. A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: 1. Is under the age of legal consent, which is eighteen years."
Section 1743 of the Code of Civil Procedure provides that an action may be maintained to declare a marriage contract void and annulled for certain enumerated reasons, and subdivision 1, as amended by the Laws of 1916, chapter 605, in effect September 1, 1916, reads: "That one or both of the parties had not attained the age of legal consent or the age under which the consent of parents or guardians was required by the laws of the state where the marriage was contracted."
The court is not unmindful of the amendment to section 1743 of the Code, and in my opinion it does not change the provision of the Domestic Relations Law regarding the age of consent in the state of New York, but the amendment applies to foreign states where the age of consent is not provided for, but requires the consent of parents or guardians.
It appears, therefore, that the plaintiff's son, being of the age of nineteen years and over the age of legal consent, which is fixed by the statute as eighteen years, contracted a valid marriage without the consent of his father, and that consequently this court is without power to relieve him from his obligations.
Complaint dismissed.