
    Bertha Kahn, Plaintiff, v. Edward A. Kahn, Defendant.
    (Supreme Court, New York Special Term,
    August, 1908.)
    Marriage — In general — Requisites and validity — Filing of contract — Consequences of failure.
    Where a contract of marriage was not filed within six months, but, prior to the expiration of such period, the provision of the statute declaring the marriage in such case absolutely void was repealed, said marriage, though possibly voidable because of failure to file the contract, was not void. So held upon a motion for alimony and counsel fees.
    Motion for alimony and counsel fees in an action for divorce.
    
      Henry Kuntz, for plaintiff.
    Abraham Levy, for defendant.
   Bischoff, J.

The marriage alleged was entered into in

the form of a written contract under subdivision 4 of section 11 of the Domestic Relations Law (Laws of 1901, chap. 339), the date of the marriage being the 19th of August, 1907. The statute required that the contract should be filed within six months. Thus, the last day for filing would fall on February 19, 1908, and it appears to be undisputed that the document was not filed. The defendant’s contention is that section 19 of the Domestic Relations Law, added by chapter 339 of the Laws of 1901, operated to make every marriage not evidenced or solemnized in accordance with the statute absolutely void, and not voidable merely, and that, therefore, the admitted failure to file the contract must result-in the finding that there was no marriage, hence that this motion for alimony and counsel fees pendente lite should be denied. There would seem to be merit in this contention if section 19 of the Domestic Relations Law, as enacted in 1901, had remained in force, since the words used to express the absolute invalidity of any marriage not in accordance with the provisions of the statute are unmistakable in their import, but by chapter 742 of the Laws of 1907, section 19 was repealed, the repeal to take effect on the 1st day of January, 1908. Therefore, prior to the expiration of the period during which the plaintiff could have filed the contract of marriage in compliance with the statute, the provision which made the contract void if not filed was no longer a part of the law of this State, and at the expiration of the six months’ period, on February 19, 1908, the omission of filing created a situation in which the marriage was possibly voidable because of noncompliance with a condition imposed by law, but was not void. See Meister v. Moore, 96 U. S. 76. Motion granted. Alimony awarded at the rate of five dollars per week; counsel fee of fifty dollars.

Motion granted.  