Opinion
February 9, 1906.
Louis B. Boudin, of counsel [ Boudin Liebman, attorneys], for the appellant.
J. Philip Berg, of counsel [ David Sternlicht, attorney], for the respondent.
The plaintiff, by her guardian ad litem, brings this action to procure a decree annulling her marriage with the defendant. The complaint alleges, and the proof satisfactorily establishes, that she was born on the 18th day of February, 1888. A ceremonial marriage took place on the 16th day of August, 1903, in the presence of her family and about 300 invited guests. She was at that time fifteen years of age. The plaintiff and defendant ceased to live together in the latter part of November, 1903. She brings her action under section 1743 of the Code of Civil Procedure which provides that "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 existing at the time of the marriage: 1. That one or both of the parties had not attained the age of legal consent." The Domestic Relations Law (Laws of 1896, chap. 272) provides in article 1, under the heading "Unlawful Marriages," in section 4 that "a marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto * * * is under the age of legal consent, which is eighteen years. * * * Actions to annual a void or voidable marriage may be brought only as provided in the Code of Civil Procedure." The learned counsel for the defendant contends that section 1743 of the Code does not apply; that the action by the woman must be brought under section 1742 of the Code; and that as this marriage did take place with "the consent of her father, mother, guardian or other person having the legal charge of her person" and was "followed by consummation or cohabitation" it was not unlawful or voidable and that she is not entitled to a decree of annulment. In brief, that no action by the wife lies, merely because the marriage took place before she arrived at the age of legal consent. This precise question was before this court in Conte v. Conte ( 82 App. Div. 335). Mr. Justice LAUGHLIN, writing the opinion of an unanimous court, upon a careful examination of the various provisions of law affecting the question of actions for the annulment of the marriage, reached the conclusion that section 1743 of the Code did apply, and that such an action was maintainable. This decision was followed by the learned Appellate Division in the fourth department in Earl v. Earl ( 96 App. Div. 639). We have again considered the matter, and find no reason to depart from the views laid down. We, therefore, would affirm this judgment were it not for a technical defect.
The learned trial justice signed a decision in the form known as the short form of decision, permitted before the amendment of section 1022 of the Code made by chapter 85 of the Laws of 1903. That section now provides: "The decision of the court, or the report of a referee, upon the trial of the whole issues of fact, must state separately the facts found, and the conclusions of law, and direct the judgment to be entered thereon, which decision so filed shall form part of the judgment roll." "The power to formulate the decision upon the issues, and upon which the judgment must be entered, rests exclusively with the trial tribunal." ( Cutter v. Gudebrod Brothers Co., 168 N.Y. 512.)
The judgment must be vacated. "The trial court may then make and file a decision disposing of the issues and directing the proper judgment in accordance with the provisions of section 1022 of the Code of Civil Procedure." ( Electric Boat Co. v. Howey, 96 App. Div. 410.)
The judgment should be reversed, and matter remitted to the trial justice to make and file a decision in accordance with section 1022 of the Code, without costs to either party.
O'BRIEN, P.J., INGRAHAM, LAUGHLIN and HOUGHTON, JJ., concurred.
Judgment reversed and matter remitted to the trial justice as directed in opinion, without costs.