
    HERFORTH against HERFORTH.
    
      Supreme Court, First District; Special Term,
    
    
      March, 1867.
    . Divorce.—Almost.—Reference.
    Where the question of alimony during pendency of suit is referred, the referee should not go into the question, whether the plaintiff or defendant were ever married, especially where that question is the only" important one in the suit.
    The referee cannot decide the question of marriage, definitely, upon such a reference, for his decision, if adverse to the plaintiff, would practically preclude the plaintiff from the trial of that question before the court and jury, by denying her the means to prosecute the_action.
    
      Proof of cohabitation, with a recognition by the defendant, and that on many occasions and in the presence of witness, he treated the plaintiff as his wife is sufficient proof of marriage in such a case, to entitle the wife to temporary alimony.
    The fact that the wife has acted inconsistently with her claim as a wife, and has even-commenced suits against her husband by her former name, should not be regarded as decisive against her on the question of such allowance.
    Motion to confirm report of referee. _
    This was an action for a limited divorce, on the ground of cruelty and desertion.
    The complaint of the plaintiff alleged that since the 17th of Decemher, 1864, the defendant, her husband, deserted her.. That during the months of January, February, and March, 1864, the defendant treated her in a cruel and inhuman manner, striking and beating her, and administered powerful drugs upon her, by threats, so as to produce abortion, and that in the month of November, 1864, he imprisoned the plaintiff in a room for three days, giving her no food and almost starving her. The plaintiff alleged that the defendant was worth over $100,000, and prayed .for divorce and an allowance for her support.
    The defendant in answer put in a general denial.
    On the 3rd day of June, 1866, a motion was made by plaintiff at chambers for alimony and counsel fee, pending the action, which was referred to Charles Price, Esq., to take testimony thereon.
    The reference lasted over three months, and the testimony taken was very voluminous. The plaintiff testified that she was married to the defendant in Magdeburg, Germany. That she¿- came with hirn here and lent the defendant $5,000 of her money. That as soon as they arrived here, he took her money and left her. That afterwards he came back to her, and on' her signing a release to him of all claims, he paid her back $2,500. That afterwards he had the marriage ceremony performed over again, in the city of Hew York, and lived with • her a short time, during which time he treated her cruelly, and that finally he again deserted her, and took with him the $2,500, which he had paid her on settlement.
    The plaintiff had no marriage certificate nor witnesses of the marriage. She could only introduce a great deal of evidence to show that the defendant had-in trod need her as his wife, had lived with her as such, and had hired rooms where he always introduced her as his wife, and she was generally known as Mrs. Ilerforth, among all the defendant’s acquaintances.
    The defendant admitted that lie was worth $100,000, and that he had deserted her, but he alleged that he never was married to her, but that she was his mistress, and to prove these facts, he put in evidence certain suits commenced by her in the name of Henrietta Schmidt against the defendant, and also a judgment recovered by the plaintiff under the last name against the defendant, in the Superior court, for $2,963.66.
    The testimony on both sides was conflicting. The following was the report of the referee: “ It having been conceded that the defendant had abandoned and' deserted the plaintiff, and that the defendant’s pecuniary meains are large and ample, the only remaining fact collaterally before me, to be determined with reasonable probability of its occurrence, is the marriage of the parties .herein. The complaint alleges that in the month of January, 1863,. the precise day being unknown to plaintiff, in the city of Magdeburg, Germany, the plaintiff was married to the defendant.
    There has been no evidence produced before me, to sustain this allegation in the complaint. A witness for the plaintiff named John Büss, has testified that he was present at a marriage ceremony between them at Ho. 8 Chrysde street, in' this city, and that it took place in October, 1864. The evidence of this witness is too unreliable to be depended upon.
    The plaintiffhas proven acts of recognition, cohabitation and general reputation, and they are relied upon as affording proof' of marriage, and are deemed sufficient to entitle her to alimony. The parties herein appear to have been known to these witnesses as Mr. and Mrs. Ilerforth, with the exception of. two witnesses, Andrew Yemmerman and Fanny Schwabe.
    Zimmerman let apartments to the plaintiff and defendant, in August, 1863; she thinks the defendant gave the name of Schmidt, and says that is the name in his hook. 'The other witness, Fanny Schwabe, knew the plaintiff and defendant when they hired of Zimmerman, and.afterwards lived with them when they moved, to Forsyth street, where she thinks they went by the name of Schmidt. They lived in Forsyth street three or four weeks, and afterwards. went to Harlem, where they lived, under the name of Herforth.
    The conflict of presumptions arising from the testimony, can be settled from the rule in such cases, that that must yield which has the least degree of probability to sustain it.
    The testimony on behalf of the defendant, shows that before the plaintiff came to this country she bore the name of Henrietta Schmidt. She. then admitted that she was married, and her husband kept a soáp boiler, or was keeping a stand at leipsic. In June, 1863, after her arrival in this country, she asked the witness, Joseph M. Becker, to talk to Hr. Herforth, to act light towards her, and that he ought to marry her. It is in evidence that on the-7th day of March, 1864, in the name of Henrietta Schmidt, she executed a general release to the defendant, Emil Herforth. ¡
    And it is further shown by ad affidavit made by the plaintiff . on the 18th day of January, 1865, in an action commenced by her in the Superior court of this city against the defendant herein, she then represented herself to be Henrietta Schmidt, living at 64 Leonard street. That she was unmarried, and alleged that the defendant had promised to marry her, and had failed to keep his promise. It does seem improbable that the plaintiff could then have forgotten the marriage at 8 Chrystie street, in October, 18¡4, or if such an occurrence had taken place, that she would consent to occupy a position so inconsistent as shown by the allegations contained in this affidavit.
    It is admitted that the plaintiff has commenced in the Superior court, and court of Common Pleas of this county, several ■actions by and in the name of llenrietta'Schmidt against Emil Herforth, and these actions are now pending. And it is furthermore admitted that the plaintiff herein by and in the name of Henrietta Schmidt, has recently obtained a verdict of $2,500 against the defendant, Emil Herforth.
    Are such actions compatible with conjugal relations,if these ever existed % The question for my determination is whether any alimony ad interim should be allowed.
    After a careful consideration of the facts and circumstances, presented by the testimony taken before me, I have arrived at a conclusion adverse to the plaintiff. This being the wife’s bill for a separation “ a meritorious bill of complaint must be shown, and it 'must at least appear that the plaintiff has good ground for bringing the suit.”
    In this case the presumptions in favor of the legality of the marriage, are not sustained by acts of recognition, cohabitation, and general reputation, but are rebutted by facts and circumstances, that have impressed my mind with the conviction that the plaintiff has not shown a meritorious cause of complaint, nor has she made it to appear that she had good ground for bringing the suit. The .defendant’s conduct has been reprehensible ; the mesalliance between him and the plaintiff has been productive of no other fruit, but vexation and strife, the result of his own folly. In my opinion, the plaintiff is not entitled to alimony or counsel fee, during the continuance of this claim.
    The motion to confirm the report, duly came on before Justice E. D. Smith, in March, 1867. The plaintiff opposed the confirmation of the report.
    
      Blumenstiel & Cohen, for the plaintiff, in opposition, to the motion.
    “Marriage is a civil contract, and maybe entered into in any manner which clearly evinces the intention of the parties.” Solemnization by a magistrate or clergyman is not necessary (Ct. of Appeals, 1862, Hayes v. People, 25 N. Y., 390; 15 Abb., 163; 24 How., 452).
    By the laws of this State, marriage is treated merely as a civil contract, not requiring legal forms, religious solenmization, .or any special mode of proof (Cunningham v. Burdell, 4 Brad., 343).
    Any mutual agreement between the parties to be husband and wife in prcesenti, especially when it is followed hy cohabitation, constitutes a valid and binding marriage if there is no legal disability on the part of either (Rose v. Clark, 8 Paige, 574).
    A marriage may be inferred from acts of recognition, matrimonial cohabitation and general reputation (9 Paige, 611; Clayton v. Warded, 4 N. Y. [4 Comst.], 230; 2 Brad., 1).
    Cohabitation with declaration of the parties, that they are married, affords strong prima facie evidence of a marriage in fact (Jackson v. Claw, 18 Johns., 346).
    
      It is well settled, that marriage may be proved by evidence of acts of recognition, matrimonial cohabitation, general reputation, and declaration of the parties, Christy Will case (Supreme Court, General Term, February, 1866; 8 Paige, 574; 9 Paige, 611; 4 N. Y., 430).
    Direct proof of a ceremonial marriage, is only necessary in prosecution for bigamy and actions for criminal conversations ; in other cases it may be proved from cohabitation, reputation, acknowledgment of the parties, reception in the family, and other circumstance (3 Brad., 369).
    Right of wife to testify in action for limited divorce (see Court rule 88. Bihin v. Bihin, 17. Abb., 21; 24 How., 197).
    A denial of the marriage, but not of cohabitation nor of cruelty charged in the bill, is not an answer to the woman’s application for temporary alimony (Smith v. Smith, 1 Edw., 255).
    The referee erred in admitting the release in evidence as a bar to plaintiff’s right in this fiction. The rule is well settled that such release must be pleaded. The referee erred in refusing to allow plaintiff’s declaration in the suit of Schmidt v. H&rforth tried in the Supreme court, to be admitted as evidence when he had ruled that her declarations in other suits were competent; if her declarations were competent in the one case they must have been in all.
    The hardship is apparent when the evidence offered would have showed how through fraud she had been induced to make the very statement now sought to militate against her.
    Kaufman, Frank & Wilcoxson, for defendant.
   E. Darwin Smith, J.

It was conceded before the referee "that the defendant had abandoned and deserted the plaintiff, and that his pecuniary means are large and ample. The right ' of the plaintiff to have a decree for a limited separation is not denied if plaintiff and defendant were ever husband and wife.

The action is therefore really prosecuted for alimony, and is defended to prevent the plaintiff from obtaining a decree providing for her permanent support by the defendant. The referee was to report, whether the plaintiff should have an allowance of counsel fee to enable her to prosecute the suit, and for alimony pending this suit, and if so, for what amount- The referee has gone over quite a wide held, heard much evidence on the main question in the cause, whether the plaintiff and defendant were ever married, and comes to the conclusion upon the whole evidence that they were never married, and that the plaintiff is not entitled to alimony or a counsel fee, during the continuance of the action. The referee has gone further, I think, than was necessary for the decision of the question referred to him.

The question whether the plaintiff and defendant were ever legally married is the chief, and, indeed, the only real issue, in the cause. It would be hardly just that the referee decide that question definitely and conclusively upon the preliminary reference. His decision practically precludes the plaintiff from the trial of that question before the court and a jury, by denying her the means to prosecute the action. From the findings of the referee, and the evidence received and reported by him, it is, I think, quite clear that the plaintiff and.defendant came to this country from Germany, some years since, in the character of husband and wife, and that they continued afterward for several years to cohabit together in that character. Cohabitation and recognition by the defendant of the plaintiff, is abundantly proven. The defendant, on repeated occasions, stated that the plaintiff was his wife, and treated her as such in the presence of many witnesses. This, I think, makes out á sufficient case for allowance of alimony pending the suit. The plaintiff has acted strangely, and done some things quite inconsistent with her claims to be the wife of the defendant. But in this stage of the case, I do not think the court should decide upon this evidence against the wife. I think-no injustice can be done to the defendant by holding him to his declarations, on repeated occasions, that the plaintiff .was his wife, till the question can be fully tried and fairly presented to a jury. The defendant, by his own confession, has deserted and abandoned the plaintiff, after living with her several years as his wife. If he was never legally married to her, be has then confessedly debauched and ruined her, and then cast her off without the means of support. I think he should be required to afford her reasonable means of support, until the case can be tried, and he should also furnish her with means to try fairly the ■ issues "in the cause. He is a man of large means, and it will be nothing more than strict justice, that he defray the expense of the litigation between them, and I think, therefore, that the decision of the referee should not be affirmed, but on the contrary the defendant should be ordered to pay the plaintiff for temporary alirhony, the .weekly allowance of $10, and a counsel fee to her attorney of $250, with leave to her to make any further application to the court for other allowance, as may be proper; and it is so ordered.  