Opinion
September, 1916.
Isidore I. Haber, for plaintiff.
No appearance for defendant.
This is an undefended action for an annulment of marriage, based on the claim of plaintiff's non-age. The parties were married in New Jersey, on May 27, 1916. At that time the plaintiff was eighteen years and four months old, and his parents did not consent. He testifies that he never lived with his wife.
Upon the trial, plaintiff's counsel was advised to ascertain the law of New Jersey as to the age of consent. Later he offered in evidence a statute of that state (3 Compiled Statutes of New Jersey, 3219, § 7), providing that no license to marry should be obtained by a man under twenty-one years of age, without his parents' consent. This statute did not provide that marriages made in violation of this provision should be void. Whether the courts of this state would declare such a marriage void, it not having been followed by cohabitation ( Cunningham v. Cunningham, 206 N.Y. 341), need not be here considered, for it does not arise in this case, though the general rule seems to be that such marriages are not void. See cases collated in note, 22 L.R.A. (N.S.) 1202-1207, and in note, L.R.A., 1916, C. pp. 140, 741.
Section 1743 of the Code of Civil Procedure, as it was when this action was begun, provided that a marriage could be annulled if "one or both of the parties had not attained the age of legal consent." Since the commencement of this action, this section has been amended (Laws of 1916, chap. 605, in effect Sept. 1, 1916), by adding after the words quoted the clause "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 meaning and effect of this amendment need not here be considered, for it does not affect this action; and the sole question therefore is, "Was the plaintiff under the age of `legal consent' when he married?"
The court has not been referred to any law of New Jersey expressly fixing the age of legal consent, nor has it found any. The provision of the statute already mentioned, referring to marriage licenses, does not fix that age. That statute is similar to the statute in this state relating to marriage licenses. Both require the consent of the parents before a license can be issued for a man under twenty-one years, and yet the age of legal consent is fixed by our law at eighteen years for both the man and the woman. Dom. Rel. Law, § 7.
There is a provision in the New Jersey statutes, that a man who married when he was under eighteen years of age could maintain an action to annul the marriage, and a recent statute in that state (Laws of 1915, chap. 299) gives a man over eighteen the right to appear and defend actions to annul his marriage, either personally or by solicitor. But even if these provisions, or either of them, be deemed to fix the age of legal consent for men at eighteen years, they do not aid the plaintiff, for he was more than eighteen when he married. And if they be deemed not to fix such age, and there be no provision that does, then the common-law rule would apply, and the plaintiff would be in no better position, for under it the age of legal consent for men is fourteen years. Bennett v. Smith, 21 Barb. 439; Moot v. Moot, 37 Hun, 288, 291; Partin v. Hervey, 1 Gray, 119.
So there appears to be no provision of the New Jersey statutes or law which aids the plaintiff. But even though the marriage be valid under the New Jersey laws, it might be declared invalid under the laws of this state ( Cunningham v. Cunningham, 206 N.Y. 341), and so it must be considered from that view-point. Here, again, the plaintiff fails to make out a cause of action. The age of legal consent in this state for men and women alike is eighteen, as has been pointed out already. Dom. Rel. Law, § 7. Plaintiff was over that age when he married and as the sole ground of asking an annulment is his non-age, he must fail.
The fact that section 15 of the Domestic Relations Law requires the consent of parents before a license can issue, if the man is under twenty-one, does not fix the age of consent or affect the question of annulment. Kruger v. Kruger, 137 A.D. 289.
Complaint dismissed upon the merits.