
    Edward S. Hosmer, as Trustee in Bankruptcy of Burnett Y. Tiffany, Appellant, v. Burnett Y. Tiffany and Lucille A. Tiffany, Respondents.
    First Department,
    November 5, 1906.
    Bankruptcy — creditor’s action to set aside transfer to wife made in consideration of marriage — evidence of capacity of wife to marry — when capacity of husband immaterial.
    In an action against a bankrupt and his wife to set aside a transfer of household goods to the wife, where the defense sets out an oral ante-nuptial agreement to make the transfer in consideration, of marriage, it is error to exclude evidence tending to show that the wife had a husband living at the time the agreement was made, for if she was incompetent to marry, the consideration for the marriage settlement failed.
    However, evidence attacking a Bhode Island decree divorcing the bankrupt from a former wife is properly excluded, for the promise of the wife to marry was a good consideration to support the husband’s agreement to make a marriage settlement, whether he was capable of contracting marriage or not, and the validity of the consideration for the transfer rests upon the capacity of the wife.
    Houghton, J., and O’Brien, P. J., dissented on the second proposition.
    Appeal by the plaintiff, Edward S. Hosmer, as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 24th day of January, 1906, upon -the decision of the court rendered after a trial at the Hew York Special Term dismissing the complaint upon the merits.
    
      
      L. M. Berkeley, for the appellant.
    
      Harry G. Kosch, for the respondents.
   Houghton, J.:

The defendant Burnett Y. Tiffany is a bankrupt and the plaintiff is his trustee in bankruptcy. The action is brought to set aside a-transfer of household furniture and furnishings made by the bankrupt to defendant Lucille A. Tiffany, of upwards of $3,0,000 in value. The creditors of the bankrupt, whom the plaintiff represents, are the various dealers wdio supplied these furnishings on credit. As fast as they were purchased and delivered at the house occupied by defendants, the defendant Lucille claims that they were transferred to her and that she is nowr the owner of them. Although the • defendant Burnett, at the time of the purchase, had and now has no property which can be reached for the payment of the purchase price of these articles, the transfer is attempted to be justified on the ground that the bankrupt made an ante-nuptial verbal promise in consideration of an immediate marriage, to present his wife with a furnished home.

The defendants had agreed to marry but no date for the cere-? mony had been fixed; and it is claimed that the date was,fixed and the cei'emony performed in pursuance of this promise, which the defendant Burnett immediately after the marriage began to fulfill by the purchase on credit of the household furniture which the wife now claims.

The testimony of defendant Burnett hardly meets tins claim, for it is, in substance, that he told the defendant Lucille if she would marry him immediately he would provide a furnished home for her, and that he gave the furniture to her as fast as it was purchased. The defendant Lucille testifies more strongly, and says that she told Burnett that she was tired of boarding and would not marry him unless he would furnish and give to her a home in which she might begin housekeeping, and that he agreed so to' do; and that- she carried out her part by fixing an early date for the marriage ceremony. Whatever else may be said, it must be conceded that if this transaction can be sustained as against the creditors of the bankrupt, the defendants exhibited a remarkably provident foresight in obtaining a luxuriously furnished home without the expenditure of any money. Comment, however, upon the merits of the action is unnecessary, because we are of the opiziion that this judgment must be reversed for error in the exclusion of evidence.

The only consideration for the transfer was the marriage between the defendants. The plaintiff, by cross-examination of defendant Lucille, sought to show that she had a husband living, when the alleged agreeznent for a marriage settlement was made, and, inferentially, when the marriage ceremony took place. This evidence was excluded. If she could not legally carry out her contract to marry, the consideration for the marriage settlemezzt failed, notwithstanding a ceremonial marriage was had. The consideration was open to attack, and this was one proper method of attacking it. This court has recently held that such evidence, under siznilar circuznstanees, was proper, as it manifestly is. (Howe v. Hagan, 110 App. Div. 392.)

So, too, the plaintiff sought to show that defendant Burnett had no right to contract a legal marriage, by proving that he had at the time the cereznony with the present defendant was performed, a living wife to whom he was married in the State of ISTew York, since which time he had continuously been a resident of this State, and that by substituted service in an action in which he did not appear, she obtained a divorce on the ground of desertiozi in the State of Rhode Island. An exemplified copy of the record in this action for divorce in that State was permitted to be received in evidence, but only for the purpose of showing that it was in fact a binding and effectual decree of divorce. "The learned trial court refused to consider its validity or receive it for any purpose except -to show that the defendant had the right to contract a subsequent marriage.

We think the court ez-red and- that the plaintiff was entitled to have the validity of that divorce determined. If. it was a valid judgment, then the defendant had a right to reznarry. If it was a void decree, he did not. It is ui’ged that its validity is not open to collateral attack in this action. If it was no judgment, and if it was a void decree, that fact could be shown. A void decree of divorce is always open to be attacked collaterally at any time and in any action where it is set up as a valid judgment. (Black Judg. § 246 ; 14 Cyc. 122.)

If the defendant Burnett did not appear in the action brought by his former wife for divorce on. the ground .of desertion in the State of Rhode Island, and substituted service only was had upon him, and he remained a resident of this State from the time of his first. marriage to the present time,. and his wife gained .no matrimonial domicile in the foreign State, he was. not legally divorced and did not have the right to contract a subsequent marriage within this State. (Haddock v. Haddock, 201 U. S. 562; Winston v. Winston, 165 N. Y., 553.)

It is insisted that the incapacity of defendant- Burnett to contract the marriage is immaterial, because his inability to marry would not affect the right of defendant Lucille to the marriage settlement if it' was otherwise valid. The plaintiff had a fight, however, to show that both the defendants had no right to contract the marriage which was the consideration for the pretended settlement. He must take them, however, one at a time, and he had the right to-have the facts fully developed and passed upon as to each.

It is strenuously urged that the alleged marriage settlement not-being in writing was void under the Statute of Frauds. Inasmuch as there must be a new trial it is unnecessary for us to pass upon this question for it may not be material when the facts shall be fully developed upon a retrial.

The judgment is reversed and a new trial granted, with costs to the appellant to abide the event. :

O’Brien, P. J., Ingraham, Clarke and Soott, JJ., concurred in result. .

Ingraham, J. (concurring):

I concur in the reversal of this judgment upon the ground that the plaintiff was entitled to show -that the defendant Lucille A. Tiffany had a husband living and ivas thus incapacitated from entering into a marriage contract with the defendant Burnett Y. Tiffany, for it is apparent that if one of the contracting parties had not the capacity to make a’ marriage contract her promise to marry cannot be a consideration to sustain an agreement by the person with whom she made a contract to marry. I think, therefore, that the plaintiff should have been allowed to show that the defendant Lucille A. Tiffany could not contract a marriage, and, therefore, could make no valid contract to marry at the time of the agreement which is set up by her as a defense to the plaintiffs cause of action.

I think, however, that a different rule applies to the defendant Burnett Y. Tiffany’s ability to contract marriage. If the defendant Lucille A. Tiffany, acting upon the belief and assumption that he was capable of making a valid contract of marriage, made with him a contract to marry, her promise was a good consideration to support the agreement by him to make a marriage settlement. The same principle has been, applied in an action for breach of contracts of marriage where a recovery has been sustained against the defendant making the contract, although at the time he was actually incapable of entering into a marriage contract. And upon analogy -I think a promise by a person capable of contracting marriage is a sufficient consideration for any promise that the other party to the contract may make, whether capable of contracting a marriage or not.

For these reasons I think the judgment should he reversed and a new trial ordered, with costs to the appellant to abide the event.

Clarke and Scott, JJ., concurred.

Judgment reversed, new trial granted, costs to appellant to abide event.  