Fisher v. Fisher

• Citation: 165 N.E. 460,250 N.Y. 313
• Parties: FISHER v. FISHER.
• Decision Date: 13 February 1929
• Court: New York Court of Appeals

250 N.Y. 313

165 N.E. 460

FISHER

v.FISHER.

Court of Appeals of New York.

Feb. 13, 1929.

Action by Aedita S. Fisher against Harry C. (also known as ‘Bud’) Fisher. From a judgment of the Appellate Division (233 App. Div. 19, 227 N. Y. S. 345), reversing a judgment which denied plaintiff's motion to confirm the report of the referee in separation proceedings and granting said motion, defendant appeals.

Affirmed.Appeal from Supreme Court, Appellate Division, First Department.

Charles E. Kelley, of New York City, for appellant.

Charles H. Tuttle, Paul N. Turner and Emily Holt, all of New York City, for respondent.

KELLOGG, J.

In this action for a separation the complaint alleges ‘that the parties hereto were duly married on the 24th day of October, 1925.’ The answer denies the allegation. Concededly, on the day named the parties to the action were on board the steamship Leviathan, then on the high seas, bound from the port of New York to Southampton, England. When the ship was 40 miles out from the port of New York, its captain performed a marriage ceremony, wherein these parties were the principals. In the course of the ceremony the captain asked the plaintiff if she took the defendant for her husband, asked the defendant if he took the plaintiff for his wife, received an affirmative answer from each, and thereupon pronounced them man and wife. Cohabitation of the principals followed the ceremony. The only question which survives for discussion here is this: Were the parties upon the occasion in question lawfully united in marriage?

[1][5][6] It is elementary that marriage is a civil contract; that the law deals with it as it does with all other contracts; that it pronounces a marriage to be valid wherever a man and woman, able and willing to contract, do, per verba de praesenti, promise to become husband and wife. Black Com. Sharswood, vol. 1, pp. 432-441; Kent's Com. vol. 2, p. 57; Clayton v. Wardell, 4 N. Y. 230;Ziegler v. P. Cassidy's Sons, 220 N. Y. 98, 115 N. E. 471, Ann. Cas. 1917E, 248;Meister v. Moore, 96 U. S. 76, 24 L. Ed. 826. A formal ceremony of marriage, whether in due form or not, must be assumed to be by consent, and, therefore, prima facie a contract of marriage per verba de praesenti. Fleming v. People, 27 N. Y. 329. According to the common law of all Christendom, consensual marriages-i. e., marriages resting simply on consent per verba de praesenti-between competent parties, are valid marriages. Wharton's Conflict of Laws, §§ 171-173. ‘This view prevailed and may be said to have been the common law of Christendom, as it had been of the old Roman Empire, down to the Council of Trent.’ Maitland Select Essays in Anglo-American Legal History, vol. 3, p. 810. The canon law declared a valid marriage existed where competent parties should covenant, ‘ego te accipio in meam,’ and ‘ego te accipio in meum.’ Wharton, § 171. Consensual marriages were valid in England, Scotland, the Netherlands, Spain, Portugal, Germany, and the United States. Wharton, §§ 172, 183. ‘Marriage is a thing of right, recognized in all countries, in all ages, among all people, all religions, all philosophies. It pertains, therefore, in the highest sense, to the law of nations, in distinction from the law of any particular state or country.’ Bishop on Marriage and Divorce, vol. 1, § 351. Marriage between parties capable of contracting is ‘of common right, and valid by a common law prevailing throughout Christendom.’ Hutchins v. Kimmell, 31 Mich. p. 126, 18 Am. Rep. 164. This common right, or common law, does not extend to marriages which are polygamous or incestuous. Bishop, § 375. The sanction which the law of civilized nations bestows upon marriages by mere consent is of course not inclusive of marriages which civilization commonly condemns. Hutchins v. Kimmell, supra, at page 134, of 31 Mich. Otherwise, regulations restrictive of the common right of marriage by mere consent, or imposing conditions upon it, are exceptional; they depend upon local statutes, and, as in other cases of exceptions, if one claims that a case falls within them, the burden is upon him to show the fact. ‘Prime facie a good marriage is shown when the contract is proved with cohabitation following it, and we cannot assume that there are regulations restrictive of the common right until they are shown.’ Per Cooley, J., in Hutchins v. Kimmell, supra. Every presumption lies in favor of the validity of a marriage. Bishop, vol. 1, § 13; Piers v. Piers, 2 H. L. Cas. (Eng.) 331; Hynes v. McDermott, 91 N. Y. 451, 43 Am. Rep. 677. Marriage between the parties to this action was not subject to any bar imposed by the common voice of Christendom. Consequently, although no law of any state, territory or district of the United States, sanctioning the marriage of the parties to this action, may have followed the ship Leviathan upon the high seas, in the absence of any such law which condemned the marriage, we think that they were lawfully married. It becomes necessary now to inquire whether a controlling law of any state did condemn the marriage.

The defendant, prior to the performance of the marriage ceremony in question, was already a married man. His former wife had procured, in this jurisdiction, a decree of divorce against him, dissolving the marriage on the ground of adultery. According to the terms of the decree and the laws of this state (Domestic Relations Law [Consol. Laws, c. 14] § 8), the defendant was forbidden to remarry during the life of his then wife. The wife, who procured the decree, is still living. It is well settled that the provisions of our statute forbidding the remarriage of a party who has been divorced for adultery have no extraterritorial effect; that a subsequent marriage of the guilty party, during the life of the innocent party, in a sister state, if valid in that state, will be recognized here as a lawful marriage. Moore v. Hegeman, 92 N. Y. 521, 44 Am. Rep. 408. The question then arises, Did the laws of the State of New York follow the steamship Leviathan in its journey upon the high seas?

‘The Steamship Leviathan of New York, N. Y.’ was registered in the port of New York. The certificate of registry specifies that the ‘United States of America represented by the United States Shipping Board is the only owner of the vessel called the Leviathan of New York, N. Y.’ On the high seas it flew the flag of the United States. A ship in the open sea is regarded by the law of nations as a part of the territory whose flag such ship carries. Wharton, Conflict of Laws, § 356. Wharton says: ‘As between the several states in the American Union, a ship at sea is presumed to belong to the state in which it is registered.’ For this statement the sole authority is Crapo v. Kelly, 16 Wall. 610, 21 L. Ed. 430. We think that the learned author misconceived the decision in that case. The ship there considered was a vessel owned by residents of the state of Massachusetts. It was, likewise, registered at a port within the state of Massachusetts. As we read the case, the court decided that the vessel was a Massachusetts ship, not because it has a Massachusetts registry, but because its owners were citizens of Massachusetts. The court said: ‘Again, the owners of this vessel and the assignees in insolvency were citizens of Massachusetts, and subject to her laws. It is not doubted that a sale of property between them of property on board of this vessel, or of the vessel itself, would be regulated by the laws of Massachusetts.’ In The Havana (C. C. A.) 64 F. 496, it was held that a vessel owned by a New Jersey corporation, although registered in New York, was a New Jersey vessel. In International Nav. Co. v. Lindstrom (C. C. A.) 123 F 475, it was said: ‘It is plain that the New York statute did not reach the case, because, inasmuch as the steamship belonged to a citizen of New Jersey, it was a vessel of that state, notwithstanding its registry in New York.’ To the same effect are United States Shipping Board Emergency Fleet Corporation v. Greenwald (C....