
    HYNES v. McDERMOTT.
    
      N. Y. Common Pleas ;
    
    
      General Term, November, 1879.
    Appeal.—Powee oe Appellate Covet to Set asede Veedict.— Mabeiage.—Lex Loci.—Lex Domicilii.—Evidence oe Fobeigb Law.—Peesvmptiob as to Natiobality oe Vessel.—Compabisob oe Sigbatubes.— WlTBESS.—ExPEBTS.—CODE OE Civ. Peo., § 942.
    An appeal from an order denying a motion for a new trial on the judge’s minutes, and from the judgment, brings all the evidence up for review at the general term, and that tribunal can review, and, in the exercise of a sound discretion, may, in an unmistakable case, set aside a verdict which upon due examination appears to have been influenced by passion or prejudice, or one that is clearly against'the weight of evidence.
    In this State marriage is nothing more nor less than a civil contract.
    If competent persons contract a marriage, •per verla ie prm&enti, in a foreign country, with a view to a future residence in the State of Hew York, of which one of the contracting-parties is a resident, the presumption is in favor of the validity of the marriage.
    One contesting such a marriage, on the ground of its illegality in the foreign country, must establish affirmatively what the law was there at the time of the marriage.
    Testimony of a witness who left the country some years before the marriage—in this case, about eight years—and the production of a Code published subsequently, but some time before the time of the marriage, without anything to show whether changes in the law had not intervened, are not enough to prove what was the law at the time of the marriage.
    The Code (Code Civ. Pro. § 942), requires such a book to be shown to contain the existing law.
    In the absence of any evidence, the court cannot presume that a vessel plying across the English channel, on which an American citizen contracted a marriage, was of a nationality which would subject the contract to a law difieren t from our own.
    Signatures not already in evidence in the cause cannot be shown in evidence merely for the purpose of comparison, even if proven to have been admitted to be genuine by the alleged signer.
    
    Appeal by defendants from a judgment entered on a verdict, and from an order denying a new trial upon the judge’s minutes.
    This was an action of.ejectment by Mary Eliza Hynes, and William R. Hynes and Andrew Hynes, by William H. Secor, their guardian ad litem, against Kate McDermott, John F. Antran, Mary J. McCreery, and Lavinia Gray, for a house and lot in the city of New York, and for the recovery of mesne profits.
    The plaintiffs claimed the property as the widow and heirs at law of William R Hynes, who died seized of the premises, in June, 1874. The first two defendants were tenants of the premises, and the others sisters of the deceased, and claimed as heirs at law.
    The deceased went from his residence in New York to Europe, about the year 1871, for temporary purposes. He frequently sent letters here, naming the time when he would return, and did return for a while in 1872, and fitted up a residence for himself upon the premises in question. Although, with the exception of this visit in 1872, the rest of his life was spent in Europe, he frequently declared to various parties his intention of returning to New York, which he regarded as his permanent home.
    It appeared by the evidence, that while in England he became acquainted with the plaintiff, Mrs. Hynes, who was then the widow of Charles Saunders. Her maiden name was Mary Eliza Miller, and she was born in London in 1854. She never came to this country until after the death of Mr. Hynes.
    It was proved by two witnesses, Mr. and Mrs. Andray, that Mr. and Mrs. Hynes first began living together as husband and wife in London, England, in May, 1871, under the following circumstances, as stated in the deposition of Mr. Andray:
    “When my wife and I arrived at the door of 169 Cleveland street, we met Mr. Hynes coming out; my wife said, ‘ Are you going, Mr. Hynes V He said, Yes; Lizzie and I have quarreled;’ my wife said, ‘You had better go upstairs with us and make it up he consented, and we all went up to Mrs. Hynes’ room ; Mrs. Hynes was very cross because he had not fulfilled his promise, of marriage; he wished to stay there all night, and she would not consent without marriage; Mr. Hynes said he did not believe in the marriage ceremony or the mumbling of priests ; he took a ring from his pocket and offered it to her, and said that if she would wear that ring and be true and honest to him, he would consider her his wife as much as if they had been married at church ; after a while she consented to take the ring on these conditions, and he staid there all night.”
    Numerous witnesses familiar with the parties testified that from that time forth, in England, and upon the continent of Europe, they continually lived together as husband and wife, and that he uniformly held her out to the world as his wife, introducing her as such to his acquaintances, and uniformly designating her as his wife.
    Mrs. Hynes, the plaintiff, testified that a few days after the occurrence in Cleveland street, Mr. Hynes took her to France, where they remained several months. That while they were on the steamboat crossing the English Channel, -Mr. Hynes said to her in their room; “Now, here we are, on the channel, and, if you wish it, I will repeat my promise to you, if you will do the same.” That he did so, and told her hé would take her for his wife, and that she answered him in the same manner. On their arrival in France, the same agreement was repeated between them, and there he uniformly held her out to the world as his wife.
    The infant plaintiffs were born respectively in 1872 and 1873, and were named, one for the father, William R. Hynes, and the other for his grandfather, Andrew Hynes, and were duly baptized according to the forms of the Church of England.
    The defendants attempted to make proof of a French publication, as containing the law of France on the subject of marriage, and for that purpose called one Michael Rey, who testified that he was a Frenchman by birth; was licensed as a lawyer in France in 1837, where he practiced law for twenty years, and became familiar with the codes of law there. Upon being handed two books, he testified that they were the French code, explained and commented upon. by Bogron, and that another book shown him contained the five codes and the state laws of France. That the date of the edition of the two volumes first shown him was 1859, and that of the last 1877.
    The question was then asked him whether these statutes were commonly admitted as evidence of the existing laws of France in the j udicial tribunals there. The plaintiffs’ counsel objected to this, as it was impossible for him to make the proof required by the statute, he having left France in 1863. He also claimed that the edition which was offered in evidence should be authenticated as an authorized edition; that what they offered purported to be the code or statutes of law, and the fact was that Bogron published various editions ; and that it was- incompetent unless it was proved that the very book brought into court, or of which that was a printed copy, was published by authority of France, and that it must be proved to have been commonly admitted as evidence of the existing law ; that it was not enough that it may have been a book which was in use in the courts of France.
    The court sustained the objection.
    The witness upon further examination testified that there were codes of Seriat, Bogron, and editions by a great many other people, but they were all alike, and that the two volumes first shown him constituted a printed copy of the code or statutes of France, as they-existed when he was practicing there. That he never had used the edition shown him, but had no doubt that the text of it was a correct statement of the law, and if .he had occasion to quote the French law, he would do so from that very copy in a French tribunal, and it would be admitted as true. That his opinion was founded on reason.
    The defendant offered to read from those two vol-nines the statute law of France on the subject of marriage, but upon the objection of plaintiffs’ counsel that the proof offered was not what the code called for, the court rejected the offer.
    To prove that a certain paper purporting to be a lease to Elizabeth Saunders, dated February, 1872, was signed by the plaintiff in that name, the.defendants offered the evidence of one Loader, a detective, who had seen in court, at the examination of the plaintiff, two signatures in a bank book which she, being then present, admitted to be her genuine signature, and upon this foundation proposed to prove his opinion, upon an inspection of the lease in question, that the signature thereto was like the signatures in the bank books, and so was hers. They tried also to prove an identity in handwriting between the signatures upon -the registry in London, alleged to be of the two infant plaintiffs, by a similar inspection of the registry in London, by the same witness, who proposed to show his opinion that they were similar to her signature in the bank books. But the evidence in both these cases was rejected.
    The jury were required to find specifically upon the whole evidence on questions submitted to them by the court, as appears in the following opinion of Judge Laeremobe.
    Judgment having been given for the plaintiffs, the defendants appealed.
    
      John Hallock Drake (John A. Balestier, attorney), for defendants, appellants.
    The general term, when the evidence is conflicting, on a motion for a new trial, have the right, and it is their duty, to review the evidence, and to set aside the verdict and grant a new trial, if it is clearly against the weight of evidence (Macy v. Wheeler, 30 N. Y. 237 ; Courtney v. Baker, 60 Id. 6; Wright v. Hunter, 46 Id. 409 ; Sands v. 
      Crook, 46 Id. 564; Boos v. World Mut. Life Ins. Co., 64 Id. 242). The testimony of Loader should have been admitted (Smith v. Lainsbury, 5 Carr. & Payne, 196 ; Cowen & Hill’s Notes to 1 Phil. Ev. 1,324, 1,325 ; 2 Stark. Ev. 373, 374, 6 Am. ed. ; Johnson v. Daverne, 19 Johns. 135). The'fee loei contractus determines the status of the parties (1 Bishop on Mar. & Div. § 335 ; Story on Confl. of Laws, §§ 79-81; Dalrymple v. Dalrymple, 2 Hagg. Con. 54; Scrimshire v. Scrimshire, Id. 395 ; Connelly v. Connelly, 2 Eng. L. & E. 570; Herbert v. Herbert, 2 Hagg. Con. 271; Stevenson v. Greely, 17 B. Monr. [Ky.] 193 ; Medway v. Needham, 16 Mass. 157 ; West Cambridge v. Lexington, 1 Pick. 506 ; Putnam v. Putnam, 8 Id. 433 ; Matter of Webb, 1 Tucker, 373; Davis v. Davis, 1 Abb. New Cas. 140). If the alleged ceremony took place in an English ship, the parties were amenable to English law (Marshall v. Murgetroy, 6 L. & R., Q. B. 31). The presence of a priest or clergyman is absolutely necessary to the validity of a common law marriage (Queen v. Millis, 6 C. & Finn., Appeal Cas. vol. 10, p. 534; Beamish v. Beamish, 9 House of Lords’ Cas. 274).
    
      Joseph H. Choate and William, H. Secor (John L. Brower, attorney), for plaintiffs, respondents.
    The English authorities have uniformly recognized the validity of marriages contracted by British subjects in foreign countries in accordance with the law of the domicil under similar circumstances (Ruding v. Smith, 2 Hagg. Con. 390 ; Harford v. Morris, Id. 423 ; Middleton v. Janverin, Id. 437; Latour v. Teesdale, 8 Taunt. 830; Harfords v. Higgins, 2 Hagg. Con. 432). The French authorities attach such importance to the law of the domicil, that they claim a • French subject married abroad is governed by the laws of France in all that concerns the substance of the contract, and the conditions affecting his capacity to contract (Duchesne 
      
      du Mariage; Savegny VIII, § 381). The law of America recognizes the validity of marriages of American citizens temporarily sojourning abroad, which are valid by the law of the domicil, even when they disregard provision of the lex loci contractus (Story Confl. of Laws, § 113; Wharton Confl. of Laws, §§ 141, 169, 170, 173, 180 ; Simonton v. Wallace, 2 Swaley & Tr. 67 ; Friedburg, 127, 150 ; Reinold Schmid in Die Herrschaft der Gesetze, 79 ; 1 Whart. Ex. 100, §§ 83 ; Hutchins v. Kimmel, 31 Mich. 133; Newbury v. Brunswick, 2 Vt. 151; Brower v. Brower, 1 Abb. Ct. App. Dec. 214 ; Loring v. Thorndike, 5 Allen (Mass.), 257). There can be no question as to the validity of the marriage upon the high seas. The presumption is always in favor of the validity of a marriage, and any fact which would invalidate it must be conclusively proved (Piers v. Piers, 2 H. of L. 331; Morris v. Davies, 5 Cl. & Fin. 163; 1 Bish. on Mar. & Div. 457 ; Steadman v. Powell, 1 Add. Ec. 58 ; Catterall v. Sweetman, 1 Robt. 304; Legeyt v. O’Brien, Milw. 325; Maxwell v. Maxwell, Id. 290 ; Else v. Else, Id. 146). A contract per verba de preesenti between two persons capable of marrying, to take each other for husband and wife, is a valid marriage by the laws of New York (Bissell v. Bissell, 55 Barb. 325; Bish. on Mar. & Div. § 78, 162; Fenton v. Reed, 4 Johns. 52 ; Clayton v. Wardell, 4 N. Y. 230 ; Ferrie v. Pub. Admr., 3 Bradf. 151; Tummalty v. Tummalty, Id. 369 ; Grotgen v. Grotgen, Id. 373 ; Rose v. Clark, 8 Paige, 574 ; Matter of Taylor, 9 Id. 611; Cheney v. Arnold, 15 N. Y. 345 ; Hayes v. People, 25 Id. 390 ; Van Tuyl v. Van Tuyl, 57 Barb. 235). Necessary proof of a foreign law (Code Civ. Pro. § 942). Knowledge of handwriting must be based upon having seen the party write, or upon a familiar acquaintance with his signature by the possession and familiar use of correspondence or other writings (Fitzwalter Peerage, 10 Cl. & 
      
      Fin. 193; Doe v. Suckermore, 5 Ad. & El. 703; 1 Whart. Ev. § 707, 708 ; McKeone v. Barnes, 108 Mass. 344; Commonwealth v. Coe, 115 Id. 481; Magie v. Osborn, 1 Robt. 689 ; Cunningham v. Hudson River Bank, 21 Wend. 557; Boyle v. Colman, 13 Barb. 42). The method of jiroof by comparison by a witness, applied to a paper not in evidence, has "uniformly been rejected (Whart. Ev. §§ 712, 713 ; Van Wyck v. McIntosh, 14 N. Y. 439, and cases cited ; Randolph v. McLoughlin, 48 Id. 456 ; Gooyear v. Vosburgh, 63 Barb. 154 ; P. & W. C. R. R. v. Hickman, 28 Penn. St. 318; Woodward v. Spiller, 1 Dana, 179 ; Pierce v. Northey, 14 Wis. 9 ; Niller v. Johnson, 27 Md. 6 ; Burdick v. Hunt, 43 Ind. 381; Jumpertz v. People, 21 Ill. 375; Kernin v. Hill, 37 Id. 209 ; Moore v. United States, 91 U. S. [1 Otto] 270; Tome v. R. R., 39 Md. 90-93; Smith v. Walton, 8 Gill. 86 ; Dubois v. Baker, 30 N. Y. 355; Baker v. Squier, 1 Hun, 448; Bank of Com. v. Mudgett, 44 N. Y. 514). The presumption is that the vessel upon which the parties sailed across the English channel was not under other than the American flag; and.that the American law prevailed thereon (Wharton Confl. of Laws, § 356 ; Woolsey Int. Law, §§ 54, 64; Story Confl. of Laws, § 373 ; Wheat., Part 2, c. 2, § 4, also Lawrence's Notes ; R. v. Lesley, 8 Cox C. C. 269).
    
      
       See Hunt v. Lawless, page 103 of this vol., and note.
    
   Larremore, J.

The plaintiffs, as widow and heirs at law of Wm. R. Hynes, deceased, brought suit in. ejectment, and for the recovery of mesne profits, of premises situated on the northeasterly corner of Mad- - ison avenue and Twenty-seventh street, in the city of New York. The action was originally commenced against the tenants in possession, and was subsequently amended by the ¡joinder of the heirs at law of the deceased intestate, the acknowledged owner of the premises in dispute. The main question to be determined is that which relates to the marriage between the parties, and the legitimacy of the children as a result of such marriage.

In addition to the general issue, the judge at trial term submitted the following special findings of fact:

First. “Bid Wm. B. Hynes and the plaintiff, Mary Eliza Hynes, at 169 Cleveland street in the city of London, enter into an agreement to be then and from thenceforward man and wife, upon the occasion, in the evening of the last Wednesday of May, 1871, testified to by Mr. and Mrs. Andray?”
Second. “Did Wm. B. Hynes and the plaintiff, Mary Eliza Hynes, thenceforward cohabit together in the open and acknowledged relation of man and wife ?”
Third. “Was Wm. B. Hynes, at the time of said agreement, a citizen of the State of New York, and temporarily sojourning in England?”
Fourth. “ Was the agreement made with the bona fide intention on the part of Wm. B. Hynes, to contract a valid marriage according to the laws of the State of New York, and to return to the said State and reside there with the said Mary E. Hynes, as his wife, and did that intention continue up to the time of his death?”
Fifth. “Did Wm. B. Hynes, deceased, and Mary E. Hynes, in May or June, 1871, while crossing the English channel, enter into an agreement by which they consented to take each other, then and there, as man and wife ?”
Sixth. “ Did W. B. Hynes, deceased, and Mary E. Hynes, in June, 1871, in France, enter into an agreement by which they consented to take each other, then and there, as man and wife ?”
Seventh. “Is the infant plaintiff, Wm. B. Hynes, the child of Wm. B. Hynes, deceased ?”

Upon all of said special findings the jury found in the affirmative.

This appeal, being from the order denying the motion for a new trial on the judge’s minutes, as well as from the judgment, brings all the evidence up for review at the general term. There can be no doubt of the right of that tribunal to review and set aside a verdict, which upon due examination appears to have been influenced by passion or prejudice, or one that is clearly against the weight of evidence (Macy v. Wheeler, 30 N. Y. 237; Courtner v. Baker, 60 Id. 6 ; Boos v. World Mutual Life Ins. Co., 64 Id. 242).

But such an appeal should be addressed to sound discretion, and an unmistakable conclusion upon the facts as found.

We are called upon to deal with the validity of a marriage affecting rights of property within this State. If it shall appear that the findings of the jury support the existence of such a contract, and the various exceptions in the case are shown to be untenable, then the judgment appealed from must be affirmed.

The question, what constitutes a legal marriage, is always important, and often difficult to answer. The peculiar nature and sacredness of the relation, the delicate interests involved, and the grave responsibilities depending upon it, invite and demand the most careful judicial scrutiny and discrimination.

Elementary writers have busied themselves with the discussion, whether the marriage relation was a mere contract or a status. But legislatures have prescribed the essentials, and courts of law have pronounced upon the validity of that relation. Necessarily then, where independent sovereignties differ, diversity of authority upon this subject must exist. In our own country we often find a marriage, valid in one State, unrecognized in another.

What then is to govern where authorities conflict ? Shall it be the 16 lex domicilii,” the “ lex contractus,” or the ulex loci rei sitae'1'’? Judge Stoby appears to have regarded marriage as “an institution of society, and not merely a contract which the parties thereto might dissolve at pleasure.”

This would seem to be the natural, reasonable, and moral aspect of such a relation. But nevertheless, the authorities in this State point to the conclusion that marriage is nothing more or less than a civil contract.

We come, then, to the consideration of the alleged marriage between the parties, as shown by the testimony. It is not claimed that its validity has been established in accordance with the law of England ; but the proposition is urged that the reiteration of the marriage vow on the British channel, and in France, solemnized an act which it was the intention of the parties to consummate.

The testimony of Mrs. Hynes is unimpeached. The jury believed it, and an appellate court, in the absence of gross error or mistake, should hesitate to disregard their findings. It is apparent, then, if we are to accept the testimony produced and the verdict rendered, that it was the intention of the parties to enter into the marriage relation. That such relation was followed by its recognition by the deceased, cohabitation, and birth ' of offspring, is beyond dispute ; and we are now asked, as against the weight of evidence, to reverse the judgment rendered. The facts thus established invoke the old rule of law, ‘ ‘ semper prcesumitur pro matrimonio,” and the burden of proof is thus cast upon the defendants.

What have they offered to disprove the fact of marriage1? A registry of baptism with which Mrs. Hynes is not shown to have been connected, and an offer of proof of a lease of premises taken in her former name of Saunders, which she failed to identify.

■ The jury have found, as above shown, that Wm. E. Hynes, at the time of his alleged contract of marriage, was a citizen of the State of New York, and temporarily sojourning in London ; and that the parties to said contract entered into the same with the intention of returning to and residing in the State of New York. Mr. Hynes owned property in the city of New York, that he once resided here is undisputed, and I cannot, confronted by the verdict of the jury, hold that he was not a resident of this State at the time of his alleged marriage.

This court is on record as to a marriage of this character, per verba ele presentí (Davis v. Davis, 7 Daly, 308), and the same' theory is affirmed by the supreme court of the United States in Meister v. Moore (96 U. S. [6 Otto] 76).

Conceding, however, for the purpose of argument, the invalidity of the marriage in England, that upon the English channel and the subsequent one in France next claim attention.

There was no proof of the nationality of the vessel in which parties sailed, and the court cannot indulge in inferences upon this point (Piers v. Piers, 2 House of Lds. Cas. 331; Morris v. Davies, 5 Clarke & Fin. 163 ; Bishop on Mar. & Div. 457).

Assuming then, as the verdict of the jury warrants, that the parties, who were able to contract, did -contract a marriage with a view to a future residence in the State of New York, of which one of the contracting parties has been found to have been a resident, the presumption is in favor of the validity of the marriage (Clayton v. Wardell, 4 N. Y. 230 ; Caujolle v. Ferrie, 23 Id. 90 ; Bissell v. Bissell, 55 Barb. 325).

The testimony offered to prove the French law as to marriage did not meet the requirements of our statute. It- demands that the authenticity of a foreign law or statute be established.

The testimony of Michael Rey (the witness called for that purpose) showed that he had not been in France since 1863, and the code of law produced was published subsequent to his departure from that country. Moreover, the witness testified that there were codes of the French law edited or published by Serial, Rogron, and by a great many other people.

What reliance can be placed upon such testimony ? ' Does it establish as a fact what the law of France was when this marriage was alleged to have been contracted ? Clearly not. Since 1859, that law may have been repealed, modified or so amended as to embrace the legality of the marriage in question. The defendants were bound to establish affirmatively what the law of France was at the time of this marriage.

I find no error in the refusal of the judge at trial to admit the testimony of the witness Loader, in relation to a comparison of the handwriting of Mrs. Hynes. The rule is well settled that signatures cannot be shown in evidence merely for the purpose of comparison, but comparison is allowed only when the instrument to which they are affixed has been offered in proof of some other fact (Wharton on Ev. §§ 712, 713 ; Van Wyck v. McIntosh, 14 N. Y. 439 ; Moore v. United States, 1 Otto, 270).

I have reviewed the several exceptions in this case, and find no substantial error in. the rulings. It was tried upon the theory that a citizen of this State, temporarily sojourning abroad, should, so far as property in this State is concerned, be held to the consequences of his own act. The jury having found affirmatively on all the distinctive facts at issue, and no error of record appearing, the judgment and order appealed from should be affirmed with costs.

Van Brunt, J.

The rule seems to be well settled that the validity of a marriage is to be determined by the lex loci contractus. So well recognized had this rule become that congress, in 1860, found it necessary to pass an act in relation to the marriage of American citizens in foreign countries.

American citizens had been in the habit of entering into marriage contracts at the various consulates according to the law of their domicil, under the supposition that as the consulate was under the American flag, the contract was to be deemed to have been entered into upon American soil, and therefore valid, and to be governed by the lex domicilii, no matter what might be the law regulating marriage of the country in which the consulate was situated. This position, however, being recognized as entirely false, and it being established that the lex loci determined the validity of such marriage, congress, in 1860, passed an act providing that “ marriage in the presence of any consulate officer of the United States, between persons who would be authorized to marry if residing in the District of Columbia, shall be valid to all intents and purposes, and shall have the same effect as if so solemnized within the United States.”

It is true that decisions may be found applying the lex domicilii to such contracts, but in every such case the recognized rule of law has been put aside, because of the hardship which it would work in that particular case.

The marriage in the case at bar, which is alleged to have been entered into in London, would.seem to be void.

As to the marriage entered into upon the packet running between Dover and Calais, it would, it seems to me, be a violent presumption to suppose that the vessel carried the American flag. The vessel appears to have been one plying between Dover, an English port, and Calais, a French port, only twenty-one miles distant.

The marriage which the jury found was entered into in France, was not a ceremonial marriage, but an agreement of marriage entered into per verba de presentí.

Suck a marriage is valid according to the laws of the State of New York, and according to the common and civil law ; and as there was no competent evidence given as to what the law of marriage is in France, as is shown by Judge Labbemore’s opinion, the presumption is that the law of France is either the same as that of the State of New York or the common or civil law ; and as the marriage contract found by the jury to have been entered into in France, is valid by either of these laws, such marriage must be held by the courts of this State to be valid. The judgment must be affirmed, with costs.

Beach, J., concurred.

Judgment affirmed.  