Opinion
October 24, 1967
Appeal by employer and its insurance carrier from a decision of the Workmen's Compensation Board which awarded death benefits to claimant as the surviving spouse of decedent. Claimant, then a widow, married Philip J. Rusk on September 27, 1921. This marriage ended in divorce, which was obtained by Mr. Rusk in California. The final judgment was filed October 17, 1930, one year after the interlocutory judgment was granted. On August 9, 1929 at Mont Joli, Province of Quebec, claimant married decedent. Thereafter claimant and decedent lived together as husband and wife in Brooklyn, New York. The board found claimant was the common-law wife of decedent and that marital status was established. The sole issue raised by appellants is that the evidence fails to prove a common-law marriage. Since the ceremonial marriage in Canada took place before the claimant's divorce became final and was therefore void (Domestic Relations Law, § 6), it must be shown that after all legal impediments had been removed that a valid common-law marriage was contracted in New York prior to April 29, 1933 when such marriages were abolished by section 11 Dom. Rel. of the Domestic Relations Law (L. 1933, ch. 606). (See Matter of Decker, 7 A.D.2d 945; Matter of Dellaca v. Hughes Constr. Co., 11 A.D.2d 828; Matter of Livermore v. Planet Corp., 12 A.D.2d 25, mot. for lv. to app. den. 9 N.Y.2d 611.) Claimant and decedent cohabited for 34 years; they held themselves out as husband and wife; and were known as such by their families, friends and others. They both had an interest in the building where they lived and both worked there. There is substantial testimony in the record to support the board's conclusion that claimant and decedent mutually agreed to live as husband and wife when it was possible to contract a valid common-law marriage in this State and there is nothing in appellants' argument or the cases cited which mandates a contrary result (see Matter of Farber v. U.S. Trucking Corp., 24 A.D.2d 1047). Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.