Rahill v. 645 Restaurant Corp.
| Decision Date | 17 November 1977 |
| Citation | 59 A.D.2d 988,399 N.Y.S.2d 342 |
| Parties | Claim of Joan Lee RAHILL, Appellant, v. 645 RESTAURANT CORP. et al., Respondents, Workmen's Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Issacson, Robustelli, Fox, Fine & Greco, New York City (Eric I. Fogelgaren, New York City, of counsel), for appellant.
Caputo & Capobianco, New York City (Philip J. Caputo, New York City, of counsel), for respondents.
Before SWEENEY, J. P., and KANE, MAHONEY, MAIN and MIKOLL, JJ.
Appeal from a decision of the Workmen's Compensation Board, filed July 22, 1976, which found that claimant was not the legal widow of the decedent.
Decedent was killed as the result of an industrial accident on October 27, 1972 and claimant filed an application for benefits which, among other things, alleged her marriage to decedent on September 22, 1961 in Elkton, Maryland, before a Justice of the Peace. The board has found she is not decedent's legal widow and claimant's appeal is limited to an attack on its finding that she had not entered into a valid ceremonial marriage in Maryland. We reject her arguments because substantial evidence supports that finding.
During the course of hearings claimant did not produce documentation of the alleged marriage and was unable to recall the name of the Justice of the Peace or the location in Elkton where the ceremony supposedly took place. She claimed to have lost her copy of the marriage certificate and to have been advised, upon inquiry to the appropriate clerk's office for Elkton, that marriage records had been destroyed by fire. Claimant's sister testified that she witnessed this ceremony, but her evidence added no further details concerning these events.
Representatives of the employer secured the appearance of the Clerk of the Circuit Court for Cecil County wherein Elkton is located. He testified that he had been clerk for some 22 years and that the recordation of all marriages in Cecil County was under his general supervision. Relating his account to the period in question, he specified that Justices of the Peace were not authorized to perform marriages in Maryland; that he personally knew all of the Justices within Cecil County; and that, to his knowledge, none were otherwise qualified as members of a religious group authorized to undertake such ceremonies, or had they ever performed a marriage. Moreover, Cecil County had never sustained a fire destroying its records and, again to his knowledge, neither had concerned State offices in Baltimore, Maryland. These latter points were significant as they pertained to the recordation of marriages for, while not essential to the validity thereof, the triplicate license form memorialized the marriage and was required to be distributed. One copy would be given to the parties after the ceremony and the person officiating would then forward the remaining papers to this witness. He would then retain and record one and transmit the last copy to State authorities in Baltimore for filing. Lastly, he related that a search of Cecil County records had failed to disclose any marriage license issued to claimant's decedent from June of 1959 to 1964.
In asserting that the presumption of a valid marriage was not overcome claimant mistakes the degree of strength such a presumption has under the circumstances herein presented. It is undisputed that claimant and decedent lived openly and decently as husband and wife until the time of his death and had children, yet the fact of cohabitation in that fashion " * * * cannot and does not create a marriage * * * "; it merely raises a presumption that such a marriage exists (Matter of Fischer v. Endres Delivery Co., 45 A.D.2d 892, 357 N.Y.S.2d 222). Once a ceremonial marriage is established, by resort to this presumption if necessary, then the presumption of the validity of that marriage becomes strong indeed and includes the authority of the officer to solemnize it (Matter of Myers v. Tuttle, 278 App.Div. 543, 107 N.Y.S.2d 158, mot. for lv. to app. den. 303 N.Y. 1014, 103 N.E.2d 738). In this case, however, it is plain that the technical validity of claimant's supposed marriage was not reached as the board obviously disbelieved claimant and concluded that no marriage ceremony had ever taken place.
That a ceremony occurred as claimant and her sister said it did was plainly incredible. A marriage license might be lost; copies thereof regularly filed in two separate locations might be destroyed or overlooked; and a Justice of the Peace might be qualified to perform marriages without a clerk being aware of this dual authority and its exercise, but the chances of all these happenstances arising simultaneously is infinitesimal. Even if claimant called the wrong official in search of some record of her marriage, it is highly unlikely that she would be fobbed off by a lie, or that a clerk involved with marriage records would not know of their destruction by fire anywhere in his State. It is within the province of the board to resolve the credibility of the various witnesses and we discern no reason to quibble with its manifest choice since proof both substantial and compelling supports that determination. Had the board accepted claimant's evidence based on the presumption of a ceremony and proceeded to conclude that the marriage entered into by the parties was invalid owing to a lack of authority by a Justice of the Peace to perform it, a different and far narrower issue would have arisen. Only then would we have to consider whether the more forceful presumption of validity had been overwhelmingly rebutted (see Matter of Esmond v. Lyons Bar & Grill, 26 A.D.2d 884, 274 N.Y.S.2d 225). Since a foundation for the weaker presumption favoring a ceremony was convincingly removed from this case, we have no hesitancy in affirming the board's decision.
Decision affirmed, without costs.
SWEENEY, J. P., and KANE, MAHONEY and MAIN, JJ., concur.
MIKOLL, J., dissents and votes to reverse in the...
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