
    Daniel H. Baylis, Appellant, v. Emma L. Baylis or Emma L. Bath or Emma L. Morrison, Respondent.
    Second Department,
    October 27, 1911.
    Husband and wife — annulment — former marriage in force — custody of children — legitimacy — belief in validity of divorce.
    In an action to annul a marriage on the ground that a former husband of defendant is still living the plaintiff is not entitled, as a matter of right, to the custody of the issue of the marriage, or to have the same declared his legitimate offspring, unless it appear that he either did not know of the former marriage or believed the former husband to be dead.
    The fact that the defendant told him before the marriage that she had obtained a valid divorce in another State from her first husband and that he believed her and married her relying on such statement, does not bring him or the children of the marriage within the protection of section 1745 of the Code of Civu Procedure. _
    Carr and Woodward, JJ., dissented.
    
      Appeal by the. plaintiff, Daniel H. Baylis, from part of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 12th day of November, 1910, upon the decision of the court rendered after a. trial at the Nassau Special Term, with notice of ,an intention to'' bring up for review part of an interlocutory judgment entered in said clerk’s office on the 1st day of August, 1910.
    
      Charles Coleman Miller, for the appellant.
    
      Rowland Miles, for the respondent.
   Thomas, J.:

The plaintiff married the defendant relying solely upon her statement that she had obtained in Connecticut an absolute divorce from her husband, one Bath. The plaintiff appeals from so much of the judgment herein declaring the second ' marriage void as denies him the custody of the issue of the same, and decrees its incapacity to succeed to his property. His contention is that he married in good faith, believing justifiably that the former marriage had been duly dissolved, and relying defensibly• upon defendant’s advice to that effect. Hence he invokes for himself and the child the protection of section 1745 of the Code of Civil Procedure. That section so avails him only in case of his marriage in good' faith and “without any knowledge” on his part “of such former'marriage,” or with full belief that the absent party to it is dead in case he had knowledge' of the marriage. The appellant would interpret the language as meaning that full belief in the death'or divorce of the absent party is an • alternative in case of knowledge of the marriage, and cites in support Earle v. Earle (141 App. Div. 611). The finding is that marriage was contracted by plaintiff in good faith, but there is refusal to find that it was without any knowledge that the former marriage was in force. A person, whom he had known as a married woman living in the State of New York and removing later to the State- of Connecticut, said to him that, she had obtained an absolute divorce in the latter State. He, knowing and seeking to know nothing’ more in regard to tíie divorce, married her. The decree of alleged divorce was an easily accessible record of a court in an adjoining State. He knew, or if he did not know his ignorance does not excuse him, that such foreign judgment was invalid here in absence of jurisdiction to render it there, and he accepted the woman’s statement as establishing such jurisdiction and consequent validity of the decree. His reliance upon the mere saying of the woman indicates credulity, which does not prove the good faith and lack of knowledge demanded by the statute. He had knowledge of the marriage. Hence he was not within the statute: But he asserts that her words dissipated his knowledge so that what he knew no longer existed. But I consider that he was not privileged to permit what he knew so well.to be extinguished by a prodigal confidence in the party to the divorce. There was the decree revealing the truth. He shunned the ascertainment and all attempt to verify what she had said to him. Moreover, the statute means what it says, and it does not say what plaintiff would have it say. The section relates to an action to annul a. marriage upon the ground of a former marriage in force. The intention is to protect the party competent to contract in the enjoyment of the issue of . the marriage, and to give it in their relation to him the status of legitimacy. But such result can follow from good faith in contracting a marriage made with-' full belief that the husband or wife is dead, or without any knowledge that there was such former marriage. Ignorance of the marriage or belief in its cessation by death, not dissolution by divorce, is the condition. In other words, full belief in the dissolution of a known marriage is made by appellant an additional protective feature of the section. But the statute speaks of a definite thing, to wit, .the annulment of a marriage by reason of a former marriage in force. In the case at ■ bar there was a former marriage in force. It is of such former marriage that the innocent party must not have “any knowledge.” The statute also provides that he may regard the marriage not in force, although it be in force, in the single case that, he fully believes.that the party to it is dead, although not dead. And plaintiff would add to this paraphrase “or divorced, although not divorced.” The Legislature itself could exercise no more power to make obvious amendment. Belief that a party is dead, and belief that he is divorced, are two quite separate mental conditions accruing in very distinct ways. Knowledge and belief in the death of a person arise from personal knowledge, or more often from report, or from such long continuing absence of report or knowledge of him that it is a just inference that his death has removed him from sources of information. The' belief in that case should be founded on a sincere and ample inquiry. But in the case of divorce there is narrowed opportunity for erroneous belief. The law instructs the inquirer, and evidence reposes in a judgment filed in a public office, presumptively showing what jurisdiction the court had to render it. A person cannot say that he had “full belief ” that a divorce existed if public records otherwise teach him. Hence the Legislature might with sound policy compel a party to learn the truth respecting a divorce, and excuse him in a justified .belief of death. In any case,, that is' what the statute enaóts, and this court is not permitted to add to it what is not within its spirit or words.

The judgment should be affirmed, with costs.

Jerks, P. J., and Rich, J., concurred; Carr and Woodward, JJ., dissented on the authority of Earle v. Earle (141 App. Div. 611).

Judgment affirmed, with costs.  