¶1- The plaintiff sues for breach of a promise to marry. Defendant denies that he ever promised to marry plaintiff, and by way of separate defenses alleges that prior to the. alleged agreement the plaintiff had been lawfully, married to . one Julius Stem,' and had' lived and cohabited with him as his wife, and that such marriage had never been annulled, nor had the parties ever., been divorced from the bonds thereof, and that in consequence the '■ plaintiff was hot competent to contract a marriage or to make a valid . engagement to marry; that plaintiff had brought two actions against said Stein, one for a separation and one for an annulment of the marriage on the ground, that at the time of his marriage' with' plaintiff St'ein had another wife living, and that plaintiff by holding herself out as .the wife of said Stein had estopped herself from claiming to be a single woman capable of entering into a valid engagement to marry. The plaintiff, although not requited to do so, voluntarily replied to these defenses, alleging that prior to January 10,1900, the date upon which she went through a marriage ceremony with J uiius Stein, he had [been duly married, to another woman, who, on said •10th day of January; 1900; was living; that, no divorce or annulment, of said marriage had been obtained ; that the same, was,-on ' -said ■ 10th day of January, 1900, in full force and effect, and' that by reason thereof the plaintiff never became nor is the lawful wife of *3said Stein, and that her marriage to said Stein was and is absolutely void and of no effect whatever. • To this reply the defendant demurred upon the ground of its insufficiency; his demurrer was sustained and a final judgment entered dismissing the complaint upon the merits. It is sought to sustain this judgment upon two , grounds: First, that the attempted marriage to Stein, although void, ■ incapacitated plaintiff from making a valid agreement to enter upon another marriage until the invalidity of the first marriage should be judicially determined, and, second, because the continued existence of Stein’s former marriage was insufficiently pleaded in. the reply. . . .
¶2If we assume that the continuing validity of Stein’s first marriage is sufficiently pleaded in the reply, that pleading would seem to. be . . proof against demurrer. The Domestic Relations Law
¶3The objection to the form of the reply is.extremely technical. The Domestic Relations Law (§ 3) declares that ‘ A marriage is abso*4lately void if-contracted by a person whose husband or wife by a: former marriagé.'is living, unless either: 1., Such former marriage has been: annulled or lias been dissolved for a cause other than the adultery of such person ; 2. Such former husband or wife has been-' finally sentenced to imprisonment for life; 3. Such former husband Or wife has absented, himself or herself for five successive years then last past without being known to such person to he living during that time.” . *
¶4The allegation of the reply respecting julius Stein’s former marriage, is.that “ no divorce or annulment of the-said, marriage had been obtained; that the same was on the said 10th day of January,. 1900, ■ .in full' force and effect.” ' The criticism upon the reply is that the allegation that the former marriage was “ in full force and effect ” is a mere conclusion of law; that the word unless in the section . quoted from the Domestic Delations Law is ,to be construed as an. exception, and that since exceptions must be pleaded* the reply should have alleged specifically that J ulius' Stein’s former marriage had not been dissolved for a cause other than his adultery; that his former wife had not been' finally sentenced to imprisonment for. life, and that she had not absented herself for five successive years then last past without being known to said Stein to be living during that time. If it is necessary to plead these exceptions in this manner in a reply asserting, the invalidity of plaintiff’s marriage t,o Stein, it would be equally, necessary to so plead them in. an action to declare that marriage void; and it is quite certain that the. profession has not so understood heretofore, and no court has ever so . held. In my view the so-called exceptions partake much more of the character of provisos; but whether considered as exceptions - or provisos, it was not necessary to negative them in the pleading. This precise question came before the Court of Appeals with reference to an indictment for bigamy. (Fleming v. People, 27 N. Y. 329.) The-statute under which the defendant in that case was indicted'declared that every person having a wife living, who shall marry anj other person, shall, “except in the'cases specified in the next section, be adjudged guilty of bigamy,” etc. (2 D. S. .687, § 8.) The next sectión declared that the preceding one “ shall not. extend to ” certain persons and cases arranged in six classes', embracing those contained in the Domestic Delations Law respecting'void marriages. *5The indictment failed to negative the exceptions, and its sufficiency was for that reason called in question. The chief judge (Denio) was of the opinion that the cases stated in which a second marriage would be bigamous constituted exceptions which should technically have been negatived in the indictment; but that the defect was purely formal and immaterial, because the People would be under no necessity to offer proof to negative the exceptions, which were matter of defense. Judge Emott, however, with whom the other judges agreed, was of the opinion that the cases specified in the statute were rather in the nature of provisos than of exceptions, and . that it was necessary neither to negative them in the indictment, nor to offer proof thereon upon the trial.
¶5In my opinion, therefore, the reply was sufficient and the demurrer should have been overruled; and even if it had been sustained the judgment appealed from is wrong, for the plaintiff should at least have been afforded an opportunity to amend her reply so as to sufficiently allege the invalidity of her marriage to, Stein.
¶6The judgment should be reversed and the demurrer, overruled, with costs in this court and the court below.
¶7Patterson, P. J., and Houghton, J., concurred; Laughlin and , Lambert, JJ., dissented.
¶9(dissenting):
¶10The plaintiff brings this action to recover damages for breach of promise of marriage. She alleges in her complaint that “ heretofore and between March, 1902, and October, 1904, … at the. city óf New York, in consideration that the plaintiff, who then was and still is sole and unmarried, would marry the defendant, the said defendant promised and agreed to marry the plaintiff at a time thereafter to he mutually agreed upon, and within a reasonable . time.” The breach of this contract is set forth, and tile plaintiff demands judgment in the sum of $50,000. The answer of the . defendant-dénies the material allegations of the complaint and sets up three separate and distinct defenses, based upon a prior marriage of thé plaintiff with one J ulius Stein, and that the plaintiff now has actions pending in the courts of this State for separation and for the nullification of such marriage. The plaintiff replied to these defenses, setting up that the said J ulius Stein, her alleged husband, *6had been duly married to another woman, who was living at the time of her alleged marriage to the said Stein, and that no divorce or annulment of said marriage had been obtainedthat the same was in full force and effect; that by reason thereof this plaintiff never became, was or is the lawful wife of the said Julius Stein. The remaining portions of the reply set out the. same facts to meet the other separate defenses.
¶11.. The defendant demurred to these replies upon thé ground that they were insufficient in law upon the facé thereof. This demurrer has been-sustained, and the plaintiff appeals to this court. The allegation- of the. complaint that the. plaintiff is- sole and unmarried is denied by the defendant; but the allegation of her reply, that at the time of her alleged marriage to Stein the latter was married to another woman, who was then living, and that no divorce or annulment of said marriage had been obtained at the time of the ceremony between, the plaintiff ' and said Stein-,, stands admitted by the demurrer. Section 3 of the Domestic Relations Law (General Laws, chap. 48) provides that “ A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either: 1. Such former marriage has-been annulled or has been dissolved for a cause Other than the adultery of such person; 2. Such former husband or wife has been finally sentenced to imprisonment for life; 3. Such" former husband or wife has absented himself or herself for five successive years then last past without "being known to. such person to be living during that time.”
¶12Assuming,, without deciding, that the reply is a relevant pleading in this action, its effect, if supported by evidence, would simply tend to establish the allegation of the complaint that the plaintiff, is “ sole and Unmarried.” The important question to be,determined upon demurrer is, whether'the allegations of the reply" aré sufficient in law to show that the plaintiff was “ sole -and unmarried ” at.the time of the alleged offer of marriage on the part of the defendant. The demurrer admits all of the facts- stated, but not the conclusions of law. At the time of "the ceremonial marriage of the plaintiff with Julius Stein, the latter had -been “ duly married to another Woman ” who was living ,at the time of her" alleged marriage to the said Stein, and that “ no divorce or annulment of the said marriage *7• had been obtained.” The allegation that this alleged prior marriage was in “ full force and effect ”.is but a conclusion to be drawn from the facts. The statute provides in effect that the prior marriage is not in “ full force and effect ” if it transpires that the former marriage has been annulled or dissolvéd for a cause other than adultery; if it is shown that the former husband or wife has been absent for five consecutive years then last past, without being known to the other party to have been living during that time. (Dom. Eel. .Law, § 3.) The reply here under consideration does not allege that’the former wife has not been finally sentenced to imprisonment for life, nor yet ■ that she has not absented herself for a period of five years prior to the second marriage without Stein knowing that she was alive during that time; and without these facts being admitted, how are we to know that the ceremonial-marriage with Stein was absolutely void? The .rule is well settled that an exception in a statute must be negatived in pleading, while a proviso need not be; an exception exempts something absolutely from the operation of the statute by express words in the enacting clause; a proviso defeats its operation conditionally; An exception takes out of the statute something that otherwise would be part of the subject-matter of it; a proviso avoids them by way of defeasance or excuse. (Rowell v. Janvrin, 151 N. Y. 60, 67, and authorities cited; Harris v. White, 81. id. 532, 546.) As already suggested, the Domestic Eelations Law pro-. ■ vides that “ A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either : 1. Such former marriage has been annulled” or some of the other conditions are shown to exist. Clearly, the word “ unless,” as used in this statute, is to have the construction of an exception; marriages where either of the parties have a husband or wife living are absolutely void, except in certain specified cases, and if we are to know whether a marriage is void or not, we -must know all of the facts. The mere allegation that a man has been duly, married, and that his wife is living at a given time, and that there has been no divorce, is not' sufficient to show that a subsequent marriage is void. It must be shown that.none of the other facts, exist which the statute points out as exceptions to the. general .rule.
¶13■ “ The word unless has the force of -except" say the court in Manning, Bowman & Co. v. Keenan. (73 N. Y, 45, 56); “its primary. *8meaning is ‘unloosened from,’ so what follows in the sentence after the word, unless is excepted or unloosened from what went before it; ” and if this is the effect of the word as used in the statute here under consideration, as we believe it to be, the reply of the plaintiff, which fails to negative these exceptions, does not inlaw establish the facts necessary to. show that the plaintiff, in this-action is an unmarried .woman, or that she was- such at the tiine of enter- ' ing into this alleged contract of marriage. The law is'well settled that a void marriage imposes no legal restraint-upon the party imposed upon from contracting another. (Patterson v. Gaines, 6 How. [U. S.] 550, 592.) Being void, not merely voidabíé, no judicial sentence of nullity is necessary to free the party imposed upon. (Pettit v. Pettit, 105 App. Div. 312; Dare v. Dare, 52 N. J. Eq. 195; Williams v. Williams, 63 Wis. 58; Blossom v. Barrett, 37 N. Y. 434) Bish. Mar., Div. & Sep. § 719.) But the difficulty . with the plaintiff is that she has failed to show facts sufficient to establish that her marriage with Stein, is void:
¶14The judgment should be affirmed, with costs. ■ -