Anna J. Kruger, by Her Guardian ad Litem, James M. O'Dell, Appellant, v. Henry Kruger, Otherwise Known as Henry Krugman, Respondent

Anna J. Kruger, by Her Guardian ad Litem, James M. O’Dell, Appellant, v. Henry Kruger, Otherwise Known as Henry Krugman, Respondent. First Department, March 11, 1910. Husband and wife — annulment of marriage—infancy — sections 1742 and 1743, Code Civil Procedure, construed —license. A woman who married under the age of seventeen years and who separated from her husband before arriving at the age of legal consent, eighteen years, may maintain an action to annul the marriage under subdivision 1 of section 1743 of the Code of Civil Procedure, although her parents con seated to the marriage. She is not restricted to the action for annulment created by section 1742 of the Code of Civil Procedure, which action is in fact obsolete and supplanted by the action created by the later section. Sections 1742 and 1743 of the Code of Civil Procedure, providing for the annulment of marriages, are in no way modified by section 15 of the Domestic Relations Law, which provides that a marriage license cannot be issued where the man is under twenty-one years of age or the woman under eighteen years unless the written consent of the parents or guardian of such minor be obtained. Appeal by the plaintiff, Anna J. Kruger, by her guardian ad litem, etc.,, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 17th day of Hovember, 1909, upon the decision of the court rendered at the Hew York Special Term dismissing the complaint in an undefended action for annulment of a marriage brought by the wife under section 1743, subdivision 1, of the Code of Civil Procedure. The opinions delivered at Special Term are reported in Kruger v. Kruger (64 Misc. Rep. 382; N. Y. L. J., Oct. 14, 1909). Oharles I. Engel, for the appellant. [MAJORITY — Miller, J.:] Miller, J.: The court found that the plaintiff was seventeen years five months and twenty-two days old at the time of the marriage, which was contracted upon the written consent of the parents, and that she was seventeen years nine months and eight days old at the time of her separation from the defendant. The right of a wife to maintain an action for an annulment of the marriage, pursuant to section 1743 of the Code of Civil Procedure, is no longer an open question in this court. (Conte v. Conte, 82 App. Div. 335 ; Earl v. Earl, 96 id. 639; Wander v. Wander, 111 id. 189.) In the first case cited Hr. Justice Laughliit traced the history of the leg islation on the subject and showed how section 1742 of the Code of Civil Procedure had become obsolete by reason of the change by statute of the age of legal consent. The Legislature, doubtless' because its attention has not been called to it, has left section 1742 on the statute boobs with the result that one who undertakes to interpret sections 1742 ' and 1743 without tracing their history is apt to be misled-. Said section 1743, subdivision. 1, provides:. “ An action may also be maintained to procure a judgment, declaring a marriage contract void and annulling the marriage for either of the following causes éxisting at the time of the marriage : 1. That one or both of the parties had not attained the age of legal consent.” Section 7 of the Domestic Relations Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19) provides : “ A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: 1. Is under the age of legal consent, which is eighteen years; * * *. Actions to annul a void or voidable marriage may be brotight only as provided in the Code of Civil Procedure.” (See, also, Cen.. Laws, chap. 48 [Laws of 1896, chap. 272], § 4.) Thus, there are two statutes, one enacted with reference to the. other, which, in the most unmistakable language provide that an action may bé maintained to procure a judgment declaring a marriage contract void and annulling the marriage where one or both of the parties had not attained the age of legal consent, which is eighteen years. The learned trial justice thought that these sections of the statute explicitly dealing with the subject of actions for the annulment of a marriage were modified by section 15. of the Domestic Relations Law, which provides in part that, where the man is under twenty-one years of age and the woman under eighteen, the town or city clerk, as the case may be, shall require the written consent of the ' parents before issuing a marriage license. That enactment was doubtless made with reference to section 70 of the Penal Law (Con-sol. Laws, chap. 40.; Laws-of 190.9, chap. 88), which makes it a crime to take a female under the age of eighteen years for the purpose of marriage, without the consent of her father, mother, guardian or other person having legal charge of her person. (See, also, Gen. Laws, chap. 48 [Laws of 1896, chap. 272], § 10, added by Laws of 1907, chap. 742, and amd. by Laws of 1908, chap. 73; Penal Code, § 282.) It must, be owned that the statute is incongruous. By one section a marriage is absolutely void from the, time its nullity is declared by a court of competent jurisdiction if either party thereto is under the age of eighteen years. By another section, town and city clerks are apparently permitted to issue marriage licenses to such persons if their parents consent. While that incongruity ought to be corrected by the Legislature, we can only deal with the statute as we find it. It is to be noted, however, that said section 15 also contains the following provision: “If it appears from the affidavits and statements so taken that the' persons for whose marriage the license in question is demanded are legally competent to marry, the said clerk shall issue such license, except in the following cases.” The judgment should be reversed and a judgment directed for the plaintiff upon the findings of the trial court. Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred. Judgment reversed and judgment ordered as directed in opinion. Settle order on notice.