
    Jennie Weisberg, Appellant, v. Morris Weisberg, Respondent.
    First Department,
    April 6, 1906.
    Husband and wife — annulment of marriage—marriage of uncle and niece not incestuous at common law — civil and criminal statutes making suck marriage incestuous are not retroactive.
    The marriage of an uncle and niece before such marriages were made incestuous and void by statute, will not be annulled, when the wife was not under any . disability at the time of marriage, and there was no fraud or concealment of the relationship, and she voluntarily cohabited with her husband, and has had two children.
    At common law the marriage of uncle and niece was not incestuous and void, arid the statute making it so is not retroactive. Otherwise the statute would be unconstitutional as impairing the obligations of contracts.
    For does section 302 of the Penal Code, declaring’ incest a crime, apply to such marriage. ”
    Appeal'by the plaintiff, Jennie, Weisberg, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Yew York on the 11th day of July, 1905, upon the decision of the court, rendered after a trial at the Yew York Special Term, sustaining a demurrer to the complaint.
    
      S. A. Potter, for the appellant.
    
      Jacob R. Schiff, for the respondent.
   Laughlin, J.:

This is an action to annul a marriage contract on the ground that the marriage was incestuous and void owing to the fact- that the parties stood in the relationship to each other of uncle and niece, the wife, being the daughter of , the husband’s sister. The plaintiff’s case as presented by the complaint does not commend itself to the-favorable consideration of the court.' She does not show that she was of immature age or under any disability at the time of the marriage, or that any fraud or deception was practiced upon her or that she did not of her own ’free will contract and consummate the marriage with full knowledge of the relationship between her and the defendant. She coolly alleges that she and the defendant were married in the city of New York on the 22d day of March, 1891, and that two children aged ‘twelve and ten years respectively have been born to them as the issue of such marriage. She does not aver that they have not lived happily together or even that they have separated with or without cause, or that the children are deficient physically or mentally in consequence of the close consanguinity of the parents or that there is danger of further issue with like misfortune. She merely alleges the bald fact that her husband is her uncle; and after voluntarily cohabiting with him for more than fourteen years she asks the court to annul the marriage on the ground of relationship alone and thereby further disgrace her children, her husband and herself. " i ■

In the early jurisprudence of this State Chancellor Kent, after carefully reviewing the authorities, including Harrison v. Burwell (2 Vent. 9), upon which the appellant relies, announced the doctrine that in the absence of .statutory law the courts would not be warranted in going further, in declaring marriages incestuous and void, than marriages in the direct line of consanguinity and between brothers and sisters in the collateral line. (Wightman v. Wightman, 4 Johns. Ch. 343; Campbell v. Crampton, 8 Abb. N. C. 363.)

Since the regulation of marriages by statutory law, in this State, marriage has been regarded as a civil contract which any person competent to make other contracts and not disqualified by statute, was competent to make. Ever since the enactment of the Revised. Statutes, our statutory law has prescribed disqualifications rendering parties ineligible to contract marriage; and marriages within certain degrees of consanguinity — not, however, extending to uncles and nieces or nephews and aunts— have been prohibited. (2 R. S. 139, § 3; Matter of Williams, 2 City Ct. Rep. 143.) Marriages between uncles and nieces are now prohibited, but they were not prohibited until after this marriage took place. (2 R. S. 139, § 3, as amd. by Laws of 1893, chap. 601, and revised in Dom. Rel. Law [Laws of 1896, chap. 272], § 2.) There is no force in the argument that this statute should be regarded as declaratory of existing law. It is the province of the Legislature to enact laws, not to adopt resolutions or pass statutes declaring what the common law or any other law was in this State at any prior time. That would be trespassing on the functions of the judiciary. “ The'Legislature * * * has no power to assume the functions of the judiciary to determine controversies among citizens or even to expound its own laws so as to control the decisions of the courts in respect to past transactions. (People v. Supervisors, 16 N. Y. 432.) To declare what the law shall be is a legislative power; to declare what it is or has been, is judicial.” (People ex rel. McDonald v. Keeler, 99 N. Y. 480.) The statute under consideration cannot be given a retroactive effect. If the marriage was valid when made it is protected by subdivision 1 of section 10 of article 1 of the Federal Constitution from impairment by any Legislature.

It is idle to argue that since by legislative enactment such marriages are now declared to be incestuous and void, they must have always been incestuous and void. One day certain acts are lawful although disapproved of by many people. The opposition takes form and later on such acts are prohibited by the Legislature. What is to-day lawful may to-morrow, if not protected by the Federal or State Constitution, be declared a crime or prohibited by legislative authority.

The argument of the learned counsel for the plaintiff that his client by continuing to live with her uncle is violating the provisions of section 302 of the Penal Code, declaring incest a crime punishable by imprisonment for not more than ten years, emphasizes the argument already made.

A marriage between parties of the statutory age, neither of whom is disqualified by any statutory law, is not incestuous and cannot in the administration of either the civil or the criminal law of this State be deemed incestuous.

It follows that the interlocutory judgment, which in such case, since the complaint cannot be cured by amendment, should have been a final judgment, should be affirmed, with costs.

O’Brien, P. J., Patterson, McLaughlin and Houghton, JJ., concurred.

Judgment affirmed, with costs. Order filed.  