
    Caroline Harbeck, App’lt, v. John H. Harbeck, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Husband and wife—Divorce—Proof of marriage.
    A union which is at first illegal, followed hy no formal celebration of marriage, with no evidence of any present agreement to take each other for husband and wife, or with doubtful proof as to any change of relations, raises a conflict in evidence, which justifies a trial judge in finding that no contract of marriage was ever entered into.
    Appeal from judgment general term supreme court, First department, affirming judgment in favor of defendant.
    
      Wm. H. Howe, tor app’lt; Wm. Fullerton, for resp’t.
    
      
       Affirming, 31 Hun, 640, Mem.
      
    
   Danforth, J.

The trial judge and the general term have found against the plaintiff, and notwithstanding a difference of opinion among the judges of the court below, we are constrained, after a careful consideration of the evidence to sustain the judgment which followed the conclusion of the majority. That the union between the parties was at first illegal is conceded. If a change occurred, it was followed by no formal celebration, nor is there evidence of any present agreement to take each ocher for husband and wife; and that they ever passed, by contract or by mutual consent, from the state of concubinage into that of marriage, is made doubtful by the admissions of the plaintiff, proven by the testimony of her sister, by that of the defendant’s father, and by other witnesses. If that testimony is true, it is difficult to find that she herself regarded the connection as matrimonial, or that its continuance depended upon anything more binding than the inclination or will of the defendant. It is true that he assumed the character of husband and she of wife, and feported themselves in that relation to their associates and others; and there was enough in their conduct, prima facie, to entitle each to the civil rights which belong to the real character; but the testimony to which I have referred, and circumstances disclosed by others, raised a conflict in evidence, which we cannot, as an appellate court, declare to be insufficient to show that the assumption was unfounded. Such was the conclusion of the trial judge. His finding is that no contract of marriage was ever entered into between the plaintiff and defendant, and we cannot say it has no evidence in its support. In the face of that finding, this appeal must fail. The judgment should therefore be affirmed.

All concur.  