People v. Heine

• Decision Date: 28 May 1959
• Citation: 186 N.Y.S.2d 721,17 Misc. 2d 337
• Parties: PEOPLE of the State of New York, Plaintiffs, v. Arthur HEINE, Defendant.
• Court: New York County Court

Page 721

186 N.Y.S.2d 721

17 Misc.2d 337

PEOPLE of the State of New York, Plaintiffs, v.Arthur HEINE, Defendant.

Kings County Court.

May 28, 1959.

Edward S. Silver, Dist. Atty. of Kings County, William I. Siegel, Asst. Dist. Atty., Brooklyn, for the People.

Irving Figowitz, Brooklyn, for defendant.

HYMAN BARSHAY, Judge.

The defendant moves to dismiss a bigamy indictment on the ground that his present second marriage was void under section 11, subdivision 5 of the Domestic Relations Law since it was performed by a justice of the peace when he, the defendant, was nineteen years of age.

An inspection of the grand jury minutes disclosed that the defendant's marriage to Aud Irene Kvamli Heine on May 9, 1954, in the Norwegian Seaman's Church in Brooklyn, N. Y., was never legally dissolved and was still a valid marrige when the defendant, at the age of nineteen years, was married to Marie Licciardi on September 4, 1955, in Stone Point, Rockland County, N. Y., by a justice of the peace.

Michael Montemarano testified that he arrested the defendant on July 3, 1958, and in a conversation had with the defendant, the latter admitted both marriages, on the dates, and at the places testified to by his respective wives; that he knew he committed bigamy.The applicable portions of section 11 of the Domestic Relations Law, as amended byChapter 606 of the Laws of 1933, provide as follows: 'By whom a marriage must be solemnized.No marriage shall be valid unless solemnized by either: 1.A clergyman or minister * * *.2.A mayor, recorder, city magistrate, police justice or police magistrate of a city, or the city clerk * * *.3.A justice or judge of a court of record, or of a municipal court, a police justice of a village, or a justice of the peace; * * *.'(Italics ours).

Subdivision 5 provides: 'Notwithstanding any other provision of this article, a marriage shall be solemnized only by those authorized in subdivision one of this section or by (1) the mayor of a city or by (2) a justice or a judge of court of record, or by (3) a justice of the court of special sessions of the city of New York, or by (4) a justice of the domestic relations court of the city of New York, or by (5) a judge of a children's court or of the city court of Buffalo where either of the parties is under the age of twenty one years.'

If subdivision 5 is intended merely as a prohibition against a justice of the peace solemnizing a marriage where either or both of the parties is under twenty-one years of age, then the marriage is valid.Such a construction would necessitate the denial of this motion.If, however, the section is construed to mean that such a marriage, solemnized by a justice of the peace, is void, the motion to dismiss the indictment should be granted.

Research fails to disclose any criminal case on the identical issue involved herein or, an expression by a court of appellate jurisdiction in a civil case as to the validity or invalidity of a marriage performed by a justice of the peace where both or either of the parties is under the age of twenty-one years.

Prior to the amendment of 1933, section 11 was entitled 'How a marriage must be solemnized' and provided that 'The marriage must be solemnized by either' certain persons there enumerated including clergymen, municipal officials, judicial officers, or by a written contract of marriage, executed, witnessed and filed as provided.

In discussing whether the statute, because it employed the word 'must' was mandatory or directory, Chief Judge Hiscock, of the Court of Appeals, in Ziegler v. P. Cassidy's Sons, 220 N.Y. 98, at page 103, 115 N.E. 471, at page 473, stated '* * * I think that the great weight of authority is to the effect that such a statute will be regarded as directory or as prescribing the essential requirements of a formal solemnization of a marriage such as may be necessary to secure the benefits of registry, etc., and will not be regarded as invalidating a form of marriage contract otherwise valid, in the absence of some provision expressly declaring or necessarily implying that result.'Further, 220 N.Y. at page 104, 115 N.E. at page 473, Judge Hiscock quotes from Meister v. Moore, 96 U.S. 76, 78, 24 L.Ed. 826, '* * * A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publication of banns, or be attested by witnesses.Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent.'

Section 11, subd. 5 of the Domestic Relations Law as presently enacted, renders invalid marriages performed by a justice of the peace where either or both parties are under 21 years of age.Since the reenactment of this section in 1933, there has been a difference of opinion as to its construction.In Caplan v. Caplan, 164 Misc. 379, 300 N.Y.S. 43, and in De Martino v. De Martino, Sup., 46 N.Y.S.2d 620, the provisions of section 11 were held to be mandatory; while in Andrews v. Andrews, 166 Misc. 297, 1 N.Y.S.2d 760, and in Graves v. Graves, Sup., 52 N.Y.S.2d 622, we find contrary holdings.The defendant, in support of his contention that his second marriage is invalid relies on the holding in the Caplan and De Martino cases.In Caplan v. Caplan, supra[164 Misc. 379, 300 N.Y.S. 44], the plaintiff brought suit to annul her marriage on the ground that she was nineteen years old when it was performed by a justice of the peace.The city clerk refused to file the marriage license and certificate because 'it is unlawful for a justice of the peace to marry anyone under the age of twenty-one years'.The Court held that 'reading section 11 of the Domestic Relations Law as a whole, it is apparent that no marriage is valid unless solemnized in the manner therein prescribed.The purported marriage of the parties herein was not performed in accordance with the provisions of that section.It follows that it was no marriage at all, and the plaintiff is entitled to a judicial declaration thereof'.

In De Martino v. De Martino, supra(an uncontested action to annul a purported marriage), when the parties secured a license from the City Clerk of Binghamton, N. Y., the...