Farber v. U.S. Trucking Corp.

• Decision Date: 08 January 1970
• Citation: 26 N.Y.2d 44,256 N.E.2d 521,308 N.Y.S.2d 358
• Parties: , 256 N.E.2d 521 Claim of Fannie FARBER, Respondent, v. U.S. TRUCKING CORP., Appellant. Workmen's Compensation Board, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 358

308 N.Y.S.2d 358

26 N.Y.2d 44, 256 N.E.2d 521

Claim of Fannie FARBER, Respondent, v. U.S. TRUCKING CORP., Appellant.

Workmen's Compensation Board, Respondent.

Court of Appeals of New York.

Jan. 8, 1970.

Jacques Smit and Dominic A. Morabito, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Morris N. Lissauer, New York City, Ruth Kessler Toch, Albany, and Daniel Polansky, New York City, of counsel), for Workmen's Compensation Board, respondent.

Jeannette H. Harris and Louis Raybin, New York City, for claimant-respondent.

BERGAN, Judge.

To sustain her status as the wife of the deceased employee of appellant U.S. Trucking Corporation, claimant relies on two separate grounds: that a ceremonial marriage contracted in New York was valid; and, in any event, that the parties later contracted a valid common-law marriage in Florida according to Florida law. The decision of the Workmen's Compensation Board was that claimant was the wife of the deceased employee Herbert Farber, and thus entitled to death benefits under the Workmen's Compensation Law

This decision followed protracted prior litigation with varying results. The award, and the legal ground on which it was stated by the board to be based, have been affirmed by the Appellate Division. The appeal from the unanimous final order of affirmance is here pursuant to CPLR 5601 (subd. (d)). In the decision thus finally made, only one of the grounds suggested by claimant was accepted by the board and the Appellate Division: that there had been a common-law marriage in Florida.

But claimant as a respondent is entitled to argue for the affirmance of the order in this court on both grounds. Since the facts as to the prior ceremonial marriage are entirely undisputed and are all matters of public record, the validity of that marriage is solely a question of law.

The validity of the common-law marriage in Florida depends on the legal sufficiency, according to Florida law, of the facts as found by the board to sustain a common-law marriage in that State. If the ceremonial marriage be held good, it would not be necessary to say whether the purported common-law marriage was good or bad. One showing of a validly contracted marriage would be enough.

But if, as it happens in the division of opinion in this court, there is not a majority in favor of holding the ceremonial marriage good, it becomes necessary also to consider the alternative, whether the common-law marriage was good in order to decide the over-all resulting question whether the order of the Appellate Division should be affirmed.

The facts relating to the ceremonial marriage are very simple. The claimant had been defendant in an action for divorce by the husband of a former marriage. Judgment went for the husband. It was entered in New York County March 24, 1942 and became final June 25, 1942. The marriage was thereupon dissolved, but under the statute then in effect (Domestic Relations Law, former § 8 McKinney's Consol.Laws, c. 14) and by the specific terms of the judgment of divorce itself, the claimant was prohibited from remarrying.

The statute at that time authorized the Supreme Court to grant permission to such a defendant to remarry upon a sufficient showing of good conduct after three years from the entry of judgment. Long after the three-year period had elapsed, but without obtaining prior permission from the court, claimant remarried Herbert Farber, the deceased employee, on January 22, 1949.

Had application for permission to remarry been made before the remarriage, and at any time after June, 1945, it would undoubtedly have been granted routinely and as a matter of course. This was then the usual practice of the Supreme Court. The fact claimant stated in the application for a marriage license that her former husband was dead rather than divorced did not turn her into a woman of bad character. On the contrary the record as a whole suggests she is a woman of good character.

In 1966 the former statutory prohibition in section 8 on remarriage of defendants in divorce cases was amended (L.1966, ch. 254) to provide that 'either party' to a divorce action 'may marry again', apparently on the ground that as a matter of public policy it is preferable in the case of defendants in divorce actions to encourage remarriage.

This statutory chance in 1966, as it first read, of course, had no effect on the bar to remarriage which would result from a 1942 judgment. But section 8 was again amended in 1968 (L.1968, ch. 584) to insert the clause: 'and whether prior or subsequent to September first, nineteen hundred sixty-seven' after the opening word 'Whenever'.

So section 8 now reads that either party to a divorce action may marry 'Whenever, such a judgment be granted 'and whether prior or subsequent to' September 1, 1967. There is a heavy time emphasis in this language and on its face it accords free sanction to remarriage of divorced defendants under old judgments without regard to how long ago they were entered.

It is clear that a defendant in a divorce action where judgment was entered in 1942 prohibiting remarriage without permission of the court could, after the effective date of the 1968 statute (June 16), have remarried without at any time obtaining any judicial permission.

The amendments of 1966 and 1968 do not, fairly viewed, retroactively eliminate the prohibition of the judgment and of the former statute effective at the time of a remarriage; but they do establish a profound change of policy in New York on the former disability to remarry imposed on a defendant in a divorce action. Thus the validity of a retroactive order of the Supreme Court in 1961 granting permission to remarry should be viewed in the perspective of this subsequent and great change in policy.

On May 11, 1961, after the accidental death of Herbert Farber in appellant's employment, formal application for permission to claimant to remarry Nunc pro tunc was granted by the Supreme Court effective as of the time of the marriage in 1949. If this order is valid the ceremonial remarriage in 1949 is good.

There seems no reasonable ground to hold the order bad on this workmen's compensation record. If the same application by the same person on the same grounds had been made in the same court in 1949 it would, as it has been noted, almost surely have been granted.

The only legal impediment to the 1949 remarriage, therefore, was the absence of a court order which under ordinary circumstances would have been granted had application been made. Relief from such a mere procedural omission seems peculiarly within the frame of ordinary judicial authority.

The only party shown to be affected by the retroactive order permitting marriage is appellant U.S. Trucking Corporation having no direct interest in the marriage relation. This appellant did apply to the Supreme Court to vacate the order of May 11, 1961.

Upon that application the right of claimant to the Nunc pro tunc order became a controverted issue in an adversary proceeding with the rights of appellant and claimant before the Supreme Court. The motion to vacate was denied January 22, 1962. Appellant had a right to appeal. It did not do so, and so after a controverted hearing the validity of the retroactive order of May 11, 1961 became the law of the case as between claimant and the appellant, whether it was legally correct or not, if there was jurisdiction to make the order.

Two cases in this court should be examined in evaluating the effectiveness of a Nunc pro tunc order to supply omissions in procedural steps affecting marriages. The first is Merrick v. Merrick, 266 N.Y. 120, 194 N.E. 55 (1934); the second is Lynch v. Lynch, 13 N.Y.2d 615, 240 N.Y.S.2d 604, 191 N.E.2d 90.

In Merrick the Supreme Court had granted Nunc pro tunc in 1933 an order permitting the wife, defendant in a divorce action in which a decree was granted in 1920, to remarry as of 1925, the time at which she had married appellant George F. Bartlett then suing for annulment. This court held the order could not be granted (Crane, J., dissenting).

The theory of decision was the general limitation on the scope of Nunc pro tunc orders, i.e., the order cannot serve to 'record a fact as of a prior date when the fact did not then exist' nor can the order supply a jurisdictional defect 'by requiring something to be done which has not been done' (O'Brien, J., 266 N.Y. p. 122, 194 N.E. p. 56).

In Lynch the Nunc pro tunc order was sustained which did just those very things. An interlocutory judgment of divorce was entered September 23, 1958. The statute (Civ.Prac.Act, § 1176) expressly provided that the interlocutory judgment would become final as of course 'Three months after' its entry.

The plaintiff wife, however, under misapprehension, remarried on December 12, 1958 before the judgment became final. An order was made by the Appellate Division, reversing Special Term, granting a motion to enter the interlocutory judgment Nunc pro tunc as of September 12, 1958 (16 A.D.2d 157, 226 N.Y.S.2d 491). There were sharp dissents in that court, but the order Nunc pro tunc was affirmed here.

This case and Merrick are not readily reconcilable. If it was wrong to 'record a fact as of a prior date when the fact did not then exist' (266 N.Y. 120, 122, 194 N.E. 55, 56, supra) in granting retroactively permission to remarry which had not in fact then been granted, it seems just about as wrong to enter an interlocutory judgment as of September 12, 1958 which in fact had not been entered until September 23 of that year.

Thus the effect of Merrick, which turned entirely on the theoretical nature of a retroactively corrective order, must be deemed weakened by Lynch. There is in the present case, too, the additional distinguishing factor which has been noted that the employer by controverting the order in an adversary proceeding to vacate it has become bound by the final determination of the issue against...