Appeal.

V. APPEAL.

77. To the general term. That the Marine Court had not power, under 2 Rev. L. of 1813, 382, § 106, to arrest its judgment, or grant a new trial. Its judgment, if erroneous, could be corrected only on certiorari. Supreme Ct., 1834, People v. Justices of Marine Ct., 12 Wend., 220.

78. Appeal authorized from decision of single judge to the general term. Laws of 1853, 1166, ch. 617, § 5.

1855, Figaniere v. Jackson, 4 E. D. Smith, 477; S. C., 2 Abbotts' Pr., 286; affirming S. C., Id., 237; 11 How. Pr., 462. Supreme Ct., Sp. T., 1855, People v. Justices of Marine Ct., 11 How. Pr., 400.

82. The general term, on appeal from a judgment on a verdict, ordered a new trial, unless plaintiff should elect to reduce the verdict; but specified no time within which he should do so. He made no election, and defendant procured an order that he elect within three days, or that the complaint be dismissed. An order was subsequently made, dismissing the complaint. Held, irregular. Although plaintiff refused to elect, he was entitled to . have the cause tried again. N. Y. Com. Pl., Sp. T., 1855, Figaniere v. Jackson, 2 Abbotts' Pr., 237; S. C., 11 How. Pr., 462.*

79. Under Laws of 1853, 1166, ch. 617, § 5,-authorizing an appeal from the judgment of a single justice of the Marine Court, to the general term,-the appeal must in all cases be taken, in the first instance, to the general term. No appeal lies to the Common Pleas, except from the decision of the general 83. The general term of the Marine Court term of the Marine Court. On such appeal has no power, on appeal from a judgment the return to the Common Pleas is to be made rendered at special term, to direct that it be by the general term of the court below. Ct. modified by increasing the amount. They of Appeals, 1856, People v. Clerk of N. Y. can, however, order a new trial, unless deMarine Ct., 3 Abbotts' Pr., 309; S. C., less fendant consents to an increase. N. Y. Com. fully, 13 Hou. Pr., 260; affirming S. C.,* 22 | Pl., 1857, Murphy v. Long, 1 Hilt., 309; S. C., Barb., 502, more fully reported, 3 Abbotts' 4 Abbotts' Pr., 476. Pr., 57. To the same effect were, Supreme Ct., Sp. T., 1855, People v. Justices of N. Y. Marine Ct., 2 Abbotts' Pr., 126; affirmed, Id., 240; 1856, People v. Justices and Clerk of N. Y. Marine Ct., 3 Id., 5; White v. Anderson, 12 How. Pr., 377. To the contrary was, N. Y. Com. Pl., Sp. T., 1856, La Farge v. Norris, 3 Abbotts' Pr., 314, note.

84. Where a judgment is reversed, upon appeal, at the general term of the Marine Court, for errors occurring upon the trial before a single judge, or for insufficiency of proof, a new trial should be awarded. N. Y. Com. Pl., 1857, Irwin v. Lawrence, 1 Hilt., 352.

85. It is only in cases where the facts involved in the action are ascertained at the trial, either by special verdict or in some other proper mode, that a final judgment may

party appearing to be entitled thereto, and adverse to the judgment appealed from. Ib.

80. Section 5 of Laws of 1853, 1166, ch. 617, confers a general appellate power on the general term of the Marine Court, to re-be given, at the general term, in favor of the view decisions of a single justice. Supreme Ct., Sp. T., 1855, People v. Justices of Marine Ct., 11 How. Pr., 400; People v. Justices of N. Y. Marine Ct., 2 Abbotts' Pr., 240; affirming S. C., Id., 126. N. Y. Com. Pl., 1855, Figaniere v. Jackson, 4 E. D. Smith, 477; S. C., 2 Abbotts' Pr., 286; affirming S. C., Id., 237; 11 How. Pr., 462.

81. Determination of appeal. Neither the general nor special term of the Marine Court has power to entertain a motion for a new trial as such, nor to review the finding of the jury as against evidence, or to set a verdict aside for excess of damages. N. Y. Com. Pl.,

86. The Marine Court, at general term, should not reverse a judgment appealed from, and order final judgment in favor of the appellant, where it appears, or may reasonably be presumed from the case presented, or the nature of the controversy, that upon a new trial additional facts might be established sufficient to charge the appellant with liability in the action. In such a case, on reversing a

* In the report in 11 How., 462, the decision is inadvertently stated to have been made at general

term. It was afterwards reversed at general term, on the ground that the appeal taken to the Marine *The decision at the special term of the Supreme Court, general term, was ineffectual. 4 E. D. Smith, Court, is reported 13 How. Pr., 5.

477; 2 Abbotts' Pr., 286.

Appeal.

judgment in favor of the plaintiff, a new trial | to have been rendered by the court below.

should be awarded. N. Y. Com. Pl., 1857, Journeay v. Brackley, 1 Hilt., 447.

Frazer v. Child, 4 E. D. Smith, 243, 245, note. 95. Payment of fees. The requirement of section 354 of the Code, that at the time of service of notice of appeal to the Common

to him the fees therein specified, is satisfied in the case of an appeal from the Marine Court, by payment to the clerk of that court. Supreme Ct., Sp. T., 1856, Loescher v. Nordmeyer, 3 Abbotts' Pr., 244; S. C., 13 How. Pr., 146.

87. Appeal too late. The Marine Court has not power to authorize an appeal to be taken to the general term "nunc pro tunc," | Pleas, upon a justice, the appellant must pay after the thirty days limited by the statute have passed. [Code, §§ 332, 405; 2 Sandf., 641; 5 How. Pr., 337; Id., 361.] It cannot do this, directly or indirectly. [11 N. Y. (1 Kern.), 274.] And an order made on an appeal, taken after the time had expired, is void, and does not entitle the prevailing party to 96. An undertaking, on appeal given unhave the judgment docketed in the county der section 354 of the Code, to pay, in case of clerk's office. N. Y. Com. Pl., 1855, Figaniere affirmance, all costs, extra costs, and disbursev. Jackson, 4 E. D. Smith, 477; S. C., 2 Ab-ments awarded against the appellant in the botts' Pr., 286; affirming S. C., Id., 237; 11 court below, together with all costs and damHow. Pr., 462. ages that might be awarded against him upon the appeal, does not bind the sureties for the payment of the damages recovered by the judgment appealed from. N. Y. Com. Pl., 1859, Onderdonk v. Emmons, 17 How. Pr.,545; S.C., more fully reported, 9 Abbotts' Pr., 187.

88. Actions against the city. Special provisions regulating appeals in actions in the Marine Court, against the city of New York. Laws of 1858, 569, ch. 334, § 3.

89. To the Common Pleas. Appeal lies from an actual determination of the general term of the Marine Court to the New York Common

Pleas within twenty days. Code of Pro., § 352; as amended, 2 Laws of 1857, 560, ch. 723, § 21.

90. How the appeal is to be taken. Code of Pro., 354; as amended, Laws of 1858, 494, ch. 306, § 16.

91. On such appeal, the appellate court will not review matters resting in the discretion of the court below, or questions of practice merely, unless they affect the substantial rights of the parties, and are returned by the justice as part of the proceedings in the cause. N. Y. Com. Pl., 1856, Mitchell v. Menkle, 1 Hilt., 142.

97. The "damages" intended by section 354, are such sum as the appellate court may award the respondent in addition to the judgment appealed from, and beyond the costs of appeal. Ib.

98. Return. On appeal from the Marine Court, the Common Pleas can look only at the return of the justice; affidavits cannot be considered. N. Y. Com. Pl., 1856, Mitchell v. Menkle, 1 Hilt., 142.

99. Where appellant relies on an error which does not grow out of the testimony, and which no possible state of the evidence could remedy, —e. g., that the judgment is for more than the sum claimed in the summons,-he need not, in his affidavit on appeal, set out the testimony. N. Y. Superior Ct., 1848, Partridge v. Thayer,

92. An appeal will not lie to the Common Pleas from a judgment of the general term of the Marine Court, which merely reverses a judgment rendered by one of its justices, without ordering a new trial or giving final judg-2 Sandf., 227. ment, or in any way determining the rights of the parties to the action. N. Y. Com. Pl., 1859, Hone v. Julien, 9 Abbotts' Pr., 193; S. C., sub nom. Hone v. Joslien, 17 How. Pr., 338.

100. Waiver of objections. Appearing and arguing on the merits an appeal taken from the decision of a single justice of the Marine Court direct to the Common Pleas, is no waiver of the objection that the appellant 93. If an appeal is taken in such case, it should have appealed in the first instance to should be dismissed, and the return sent the general term of the Marine Court. Such back, that a proper judgment may be ren-acts may waive mere irregularity, but cannot dered. Ib.

94. That where a judgment of the Marine Court is reversed by the Common Pleas, the latter have no power, under section 366 of the Code, to order a judgment, such as ought

confer jurisdiction. Ct. of Appeals, 1856, People v. Clerk of N. Y. Marine Ct., 3 Abbotts' Pr., 309; S. C., less fully reported, 13 How. Pr., 260.

101. The defendant, by pleading to the

1. Civil contract. Marriage a civil contract, § 24. VOL. III.-49

ignorance of the nature and consequence of the marriage, and her dissent to it; on a bill filed by her next friend, the court assumed protection of her as a ward of court, and forbade all intercourse or correspondence with her by the defendant. Chancery, 1817, Aymar v. Roff, 3 Johns. Ch., 49.

Consummation.

ter the death of the former husband or wife, a subsequent marriage may be inferred. Supreme Ct., 1809, Fenton v. Reed, 4 Johns., 52; 1820, Jackson v. Claw, 18 Id., 346. Chancery, 1841, Rose v. Clark, 8 Paige, 574.

16. The provision of 2 Rev. Stat., 139, § 6, "that if any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being

9. Lunatic. A private contract of marriage, by present words, with a lunatic, and without consummation, is not, it seems, such a mar-known to such person to be living during that

riage as by 1 Rev. Stat., 139, § 4, is valid until pronounced null. N. Y. Surr. Ct., 1851, Jaques . Public Administrator, 1 Bradf., 499. 10. Duress. The mere fact that the man was in custody at the time, on a charge of being the putative father of a bastard child, and that he assented with some reluctance, does not nullify the marriage. In deciding upon the sufficiency of the assent, courts will look almost exclusively to the facts attending the espousals. Supreme Ct., 1831, Jackson v. Winne, 7 Wend., 47.

time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority,"-is retrospective, and applies to all marriages, whether made before or after the enactment of the statute. Hence the children of such marriage are entitled to legacies, in the same manner as legitimate children, under the will of a testator who died since the enactment of the statute, no rights having vested in other persons. Ct. of Appeals, 1850, Bow.

11. Dissolution. No length of absence, anders v. Brower, 9 N. Y. Leg. Obs., 196. nothing short of death, or the judicial decree of a competent court, can dissolve the marriage tie. [1 Bl. Com., 440; 4 Id., 163, 164; Pothier, Trait du Contrat de Mariage, n. 437, 462-497; 1 Ersk. Inst., 109, 113; Barr. on Stat., 401; Voet's Com, ad Pand., lib. 23, tit. 2, de Ritu Nuptiarum, s. 99.] Chancery, 1815, Williamson v. Parisien, 1 Johns. Ch., 889.

As to what Second marriages are against the statute, see, also, BIGAMY.

12. Bigamy forbidden. 2 Rev. Stat., 139, § 5. 13. Marriage of divorced party. The marriage, within this State, of a woman with a man who has been divorced for his own adultery, the former wife being living at the time of such marriage, is void [2 Rev. L., 197, § 4; 2 Rev. Stat., 139, § 5]; and this whether the marriage was before or after the enactment of the Revised Statutes. Ct. of Appeals, 1854, Cropsey v. Ogden, 11 N. Y. (1 Kern.), 228.

14. Second marriage during absence. The statute concerning bigamy (Rev. L. of 1813) does not render the second marriage legal, notwithstanding the former husband of wife has been absent above five years, and has not been heard of in that time; but it only exempts the party from the operation of the statute. Supreme Ct., 1809, Fenton v. Reed, 4 Johns., 52.1 Chancery, 1815, Williamson v. Parisien, 1 Johns. Ch., 389.

17. The contract. A contract of marriage made per verba de præsenti, amounts to an actual marriage, and is valid. Supreme Ct., 1809, Fenton v. Reed, 4 Johns., 52; 1841, Starr v. Peck, 1 Hill, 270. Ct. of Appeals, 1850, Clayton v. Wardell, 4 N. Y. (4 Comst.), 230. Supreme Ct., 1857, Caujolle v. Ferrie, 26 Barb., 177. To the same effect, Ct. of Appeals, 1857, Cheney v. Arnold, 15 N. Y. (1 Smith), 345.

18. No peculiar form of words is necessary. [3 Doug., 211.] Supreme Ct., 1841, Starr . Peck, 1 Hill, 270.

19. Consummation not essential. Nothing more is necessary than a full, free, and mutual consent between the parties, though there be no consummation.* [Jac. Dict. Dig. L., 50, tit. 17, § 30.] Supreme Ct., 1831, Jackson v. Winne, 7 Wend., 47; 1857, Caujolle . Ferrie, 26 Barb., 177; affirming S. C., 4 Bradf., 28.

20. Lunatic. A man in his last illness, being of unsound mind, contracted marriage per verba de præsenti with the woman who was

*See, however, Jaques v. Public Administrator,

Bradf., 499, where, after a review of many cases.

the Surrogate declared that there was not a solitary case in our books where the marriage was held to be valid, unless there was either cohabitation, or 15. But from a continued cohabitation af- solemnization before a magistrate or minister.

25. Solemnization not necessary. There is no need of proving a ceremonial marriage; and disproval of a false claim of solemnization does not disprove the existence of the marital relation, provided the contract can be shown 32. Although where there has been an adulfrom cohabitation, reputation, and other cir- terous connection on the part of the husband, a cumstances. N. Y. Surr. Ct., 1855, Tummal-mere continuance of such connection after the ty v. Tummalty, 3 Bradf., 369; S. P., Grot- death of his wife would not raise a presumption gen v. Grotgen, Id., 373.