Opinion
March 11, 1910.
Charles I. Engel, for the appellant.
The court found that the plaintiff was seventeen years five months and twenty-two days old at the time of the marriage, which was contracted upon the written consent of the parents, and that she was seventeen years nine months and eight days old at the time of her separation from the defendant. The right of a wife to maintain an action for an annulment of the marriage, pursuant to section 1743 of the Code of Civil Procedure, is no longer an open question in this court. ( Conte v. Conte, 82 App. Div. 335; Earl v. Earl, 96 id. 639; Wander v. Wander, 111 id. 189.) In the first case cited Mr. Justice LAUGHLIN traced the history of the legislation on the subject and showed how section 1742 of the Code of Civil Procedure had become obsolete by reason of the change by statute of the age of legal consent. The Legislature, doubtless because its attention has not been called to it, has left section 1742 on the statute books with the result that one who undertakes to interpret sections 1742 and 1743 without tracing their history is apt to be misled. Said section 1743, subdivision 1, provides: "An action may also be maintained to procure a judgment, declaring a marriage contract void and annulling the marriage for either of the following causes existing at the time of the marriage: 1. That one or both of the parties had not attained the age of legal consent." Section 7 of the Domestic Relations Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19) provides: "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; * * *. Actions to annul a void or voidable marriage may be brought only as provided in the Code of Civil Procedure." (See, also, Gen. Laws, chap. 48 [Laws of 1896, chap. 272], § 4.) Thus, there are two statutes, one enacted with reference to the other, which in the most unmistakable language provide that an action may be maintained to procure a judgment declaring a marriage contract void and annulling the marriage where one or both of the parties had not attained the age of legal consent, which is eighteen years. The learned trial justice thought that these sections of the statute explicitly dealing with the subject of actions for the annulment of a marriage were modified by section 15 of the Domestic Relations Law, which provides in part that, where the man is under twenty-one years of age and the woman under eighteen, the town or city clerk, as the case may be, shall require the written consent of the parents before issuing a marriage license. That enactment was doubtless made with reference to section 70 of the Penal Law (Consol. Laws, chap. 40; Laws of 1909, chap. 88), which makes it a crime to take a female under the age of eighteen years for the purpose of marriage, without the consent of her father, mother, guardian or other person having legal charge of her person. (See, also, Gen. Laws, chap. 48 [Laws of 1896, chap. 272], § 10, added by Laws of 1907, chap. 742, and amd. by Laws of 1908, chap. 73; Penal Code, § 282.) It must be owned that the statute is incongruous. By one section a marriage is absolutely void from the time its nullity is declared by a court of competent jurisdiction if either party thereto is under the age of eighteen years. By another section, town and city clerks are apparently permitted to issue marriage licenses to such persons if their parents consent. While that incongruity ought to be corrected by the Legislature, we can only deal with the statute as we find it. It is to be noted, however, that said section 15 also contains the following provision: "If it appears from the affidavits and statements so taken that the persons for whose marriage the license in question is demanded are legally competent to marry, the said clerk shall issue such license, except in the following cases."
The judgment should be reversed and a judgment directed for the plaintiff upon the findings of the trial court.
INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN and DOWLING, JJ., concurred.
Judgment reversed and judgment ordered as directed in opinion. Settle order on notice.