
    Emily Williams, Plaintiff, v. Herman Igel, Defendant.
    (City Court of New York, Trial Term,
    February, 1909.)
    Breach of marriage promise — Promise by person already married. Divorce — Foreign divorces and allowances — Jurisdiction of foreign court — Want of personal service or notice of appearance.
    Promises of marriage where the woman has a husband living, to be carried out if she procures a divorce from her husband, are void as against public policy.
    A divorce obtained by a wife in another State without personal service upon her husband and without his appearance is void, and its validity may be questioned by one against whom the wife institutes an action to recover damages for his breach of a promise to marry her.
    Action for damages for breach, of contract of marriage.
    David Finn, for plaintiff.
    Bartley J. Wright, for defendant.
   Green, J.

This is an action brought to recover damages for breach of contract of marriage. The case was submitted to the jury under section 1185 of the Code of Civil Procedure, subject to the opinion of the court. Two questions were submitted to the jury, first, did the defendant promise to marry the plaintiff after a certain decree of divorce was obtained by her against her husband in the State of Bhode Island, and, second, what damage the plaintiff sustained if the jury find the promise of marriage was made. The jury answered yes ” to the first question and assessed the damages •at the sum of $1,250. The plaintiff at the time the original promise of marriage was made was a married woman separated from her husband for eleven years, and the evidence showed that plaintiff and defendant agreed that if she, the plaintiff, would proceed to the State of Bhode Island and obtain a divorce from her husband, that he, the defendant in this action, would marry her after the decree was obtained. The plaintiff obtained the decree of divorce from her husband, who at the time of the commencement of the action in Rhode Island resided in St. Louis, Mo., and he was never served with process in the State of Rhode Island, nor did he ever appear in the action brought in Rhode Island, either by attorney or personally, and a copy of the summons was served upon him in the action brought in Rhode Island without the State of Rhode Island, and was served in the city of St. Louis, Ho. It requires no citation of authorities to sustain the proposition that the original mutual promise of marriage, made while the plaintiff’s husband was living and the agreement then made that if the plaintiff would procure a divorce from her husband the defendant would marry the plaintiff, was void as against public policy. However, after the decree in Rhode Island was obtained by the plaintiff against her husband, she returned to the city of Hew York. The plaintiff claims and the jury found as a fact that mutual and reciprocal promises of marriage were again made, but the defendant refused to marry the plaintiff. The plaintiff now contends that the second promise, made after she procured her Rhode Island divorce, is a valid, binding contract on the part of the defendant, but the defendant insists that the decree of divorce granted by the courts of the State of Rhode Island was invalid by reason of the fact that the courts of Rhode Island never gained or obtained jurisdiction of the defendant in that action, and for that reason the divorce is void, and that plaintiff at the time in question, after the decree was granted, and when the second promise of marriage was made, was not in a position to marry the defendant, being still the wife of the man from whom the decree was obtained, and that consequently she cannot maintain this action. I am of the opinion, and it is now the well-settled law of this State, that a divorce obtained in another State without personal service upon the defendant in that State and his nonappearance personally or by attorney in the said action is wholly void. Haddock v. Haddock, 201 U. S. 562; Lynde v. Lynde, 162 N. Y. 405; Atherton v. Atherton, 155 id. 129. The plaintiff contends, however, that the right to question the validity of the decree is reserved to the party to the action alone and to no one else, but with this contention I cannot agree. While it is true that the rule is that no one may question the validity or constitutionality of a statute except a person affected by the provisions of the statute, in the case at bar I am of the opinion that where plaintiff seeks to enforce a right of contract, or rather seeks damages for a breach of contract, the court has the right to examine the record to ascertain whether plaintiff had the right to make the contract, and particularly where a question of public policy or public morals is involved. If plaintiff was in no position to carry out her contract, and the contract or promise of marriage is based upon mutual promise or agreement to marry, how can she obtain or recover damages for a breach of contract that she was legally unable to perform ? The plaintiff at the time of the promise of marriage made after the decree was obtained in Rhode Island was still in the eye of the law and the law of this State the wife of another, and she had no legal right to marry or to enter into a contract of marriage, and for this reason I am of the opinion that she is not entitled to recover. Pursuant, therefore, to section 1185 of the Code of Civil Procedure, upon and under which section of the Code the case was submitted to the jury, subject to the opinion of the court, I do hereby set aside the verdict and direct judgment to be entered for the defendant. Plaintiff may have an exception to the ruling of the court, to be taken as provided by section 994 of the Code of Civil Procedure. Ten days’ stay and thirty days to make a case.

Judgment accordingly.  