NEW YORK
38
NEW YORK
these statutorj' riKhts are, as will be seen, very -
extensive. Generally speakin;;. whatever the eorpo-
ration chooses to do that is within their corporate
power is lawful except where restricted by express
statute.
Control of Churches. — From time to time important restrictions ujjon the general power of the religious corporations in particular denominations have been made. The present Religious Corporation Law, for example, recjuires the trustees of such a body to ad- minister the temporalities of the church in .accordance with the discipline, rules, and usages of the religious denomination or ecclesiastical governing body, if any, with which the corporation is connected, and in accor- dance with the provisions of law relating thereto, and further for the suiiport and maintenance of the corpora- tion and its denominational or charitable work. It re- quires also the consent of the bishops and other offi- cers to the mortgage, lease, or conveyance of the real property of certain churches. In the case of Catholic churches it is expressly provided also that no act or proceeding of the trustees of any such church shall be valid without the express sanction of the archbishop or bishop of the diocese or, in case of his absence, of the vicar-general or administrator. To prevent the creation of abuses from the generality of any of its provisions, the statute contains a further section directing that no provision thereof shall authorize the fixing or changing of the time, nature, or order of public or social or other worship of any church in any other manner or bj' any other authority than in the manner and by the authority provided in the laws, regulations, practice, discipline, rules, and usages of the religious denomination or ecclesiastical governing body, if any, with which the church corporation is con- nected, except in churches which have a congrega- tional form of government.
Ecclesiastical Persons. — The relations of ecclesiasti- cal persons one to the other have also been considered by the courts. It has been held that the personal contracts of a bishop are the same as those of a layman as far as their form, force, and effect are concerned. It has been determined, however, that the relation of master and servant does not exist between a bishop and his priests, but only that of ecclesiastical superior and inferior. Finally, the courts have ruled that a priest or minister in any church by assuming that relation necessarily subjects his conduct in that capacity to the law and customs of the ecclesiastical body from which he derives his office and in whose name he exercises his functions.
Marriage. — Until very recent times New York fol- lowed the common law respecting marriage. All that was required for a valid marriage was the deliberate consent of competent parties entering into a present agreement. No ceremony or intervention of a civil authority was necessary.
However, it is now provided that, although the contract of marriage is still in law a civil contract, marriages not ceremonial must be proven by writings authenticated by the parties under strict formalities and in the presence of at least two witnesses and re- corded in the proper county clerk's office. It is now provided also that ceremonial marriages must not be celebrat(>d without first obtaining a marriage licence. It Ls to be noted, however, that a failure to procure the marriage licence does not invalidate a ceremonial marriage, but only subjects the offending clergyman or magistrate who officiates thereat to the penalties of the statute. All clergymen and certain magistrates are given power to solemnize marriages. No partic- ular form is required except that the parties must ex- pres.sly declare that they take each other as husband or wife. In every case one wit ness besides the clergy- man or magistrate must be present at the ceremony. It is provided, however, that modes of solemnizing marriage adopted by any religious denomination are
to be regarded as valid notwithstanding the statute.
This amending statute was passed at the session of
1907, and there are as yet no important adjudications
upon it.
Annulment of Marriage. — An action to annul her marriage may bo brought by a woman where she was under sixteen years of age at the time of the marriage and th(^ consent of her parents or guardian was not had and the marriage was not consummated and not ratified by mutual as.sent after she attained the age of sixteen years. Either the husband or wife may sue for annulment of marriage for lunacy, nonage, prior valid marriage, or because consent was obtained by force, duress, or fraud, and finally for physical in- capacity under certain rigid restrictions. The tend- ency of the courts of late years is to construe the pro- vision as to fraud liberally, and annulment has been granted on this ground where the husband has been convicted of a felony and concealed the fact bi'f<ire the marriage, and again where false representations had been made before the marriage by the woman as to the birth of a child to the plaintiff. The Court of Ap- peals in the last ease held, as the reasonable construc- tion of the statute, that the essential fact to be shown was that the fraud was material to the degree that, had it not been practised, the party deceived would not have consented to the marriage (Di Lorenzo vs. Di Lorenzo, 174 New York, 467 and 471). This de- cision, it should be noted, was put squarely on the groimd that in New York marriage is a civil contract to which the consent of parties capable in law of con- tracting is essential, and, where the consent is obtained by legal fraud, the marriage may be annulled as in the case of any other contract. Condonation of the force, duress, or fraud is required to be assumed from the fact of voluntary cohabitation after knowledge of the facts by the innocent party, and will, if established, defeat the action. Provision is also made for an ac- tion for the annulment of a marriage in certain cases at the instance of any relative having an interest in having it annulled or by a parent or guardian or next friend either in the lifetime of a party or after his or her death, where such an action will further the cause of justice.
Divorce. — Actions for absolute divorce and the dis- solution of marriage can be maintained only for the cause of adultery. The New York Courts will hear no action for divorce unless both parties were residents of the State when the offence was committed, or were married within the State, or the plaintiff was a resi- dent of the State at the time of the offence and is resident when the action is commenced, or finally when the offence was committed within the State and the injured party is a resident of the State when the action is commenced. Divorces obtained by citizens of New York in the courts of foreign jurisdiction are not recognized as valid in the State of New York un- less personal jurisdiction of both of the parties is properly obtained by the foreign courts. Collusion of the parties is strictly guarded against. Condonation of the offence is made a defence. The action must be brought within five years after the discovery of the offence. Adultery by the plaintiff is a complete de- fence to the action. The pro\'isions for the custody of the children of a dissolved marriage and for the maintenance of the innocent wife and children are very detailed and effective. Remarriage is forbidden to the guilty party during the life of the spouse, unless, after five years have elapsed, proof is made of his or her uniform good conduct, when the defendant may be permitted by the Court to marry again. The practical effect of these prohibitions is very slight be- cause the entire validity of the subsequent marriages of guilty parties in New York divorce actions, when they are made out of the State of New York, is recog- nized by tlu^ New York courts, the only penalty pro- vided for the disobedience to the decree being the
