Claim of Dondero v. Queensboro News Agency, Inc. , 270 A.D. 279 ( 1946 )

Hill, P. J.

It was found by the State Industrial Board in January, 1943, that Edward Dondero came to his death January 1,1941, as the natural and unavoidable result of injuries which he sustained that day in the regular course of his employment. The employer, Queensboro. News Agency, Inc., and the carrier, the State Insurance Fund, have been released from liability in connection with the claim for death benefits made- by appellant, Helen C. Dondero, the alleged widow. It is found, and unquestioned, that appellant Helen and decedent Edward entered into a ceremonial marriage on April 18, 1929, and it is' not disputed that from that time on, these parties lived and cohabited as man and wife. The board has found that marriage to be illegal and, so far as compensation is concerned, has annulled it, upon the ground that at the time of Helen’s marriage to decedent she was the common-law wife of one Edward Hughes. The claimant was sworn in her own behalf as was Edward Hughes, and each says that there was no common-law marriage. Each admits meretricious relations, cohabitation, and a limited reputation of being man and wife, all prior to the ceremonial marriage. No evidence is offered by the employer or by the State Insurance Fund carrier as to a marriage, common-law. or otherwise, between claimant and Hughes.

Proof of cohabitation, acknowledgment by the parties, and even a general reputation that they were man and wife, does not effect a common-law marriage. It is evidence from which an inference may be drawn, if it is not controverted. Here it is controverted by each of the parties. (Gall v. Gall, 114 N. Y. 109; Chamberlain v. Chamberlain, 71 N. Y. 423; Betsinger v. Chapman, 88 N. Y. 487.) In Boyd v. Boyd (252 N. Y. 422) a common-law marriage was found by a divided Court of Appeals, but there was proof of a signed written agreement, and the giving of a wedding ring by the man to the woman. Here each party asserts that the relation was meretricious. A common- , law marriage may be established by circumstantial evidence if it sustains an inference that legally competent persons express to each other an intent to become husband and wife and thereafter live and cohabit as such. (Matter of Haffner, 254 N. Y. 238.) The necessary element of a mutual agreement is lacking here.

The decision should be reversed and the matter remitted to the Workmen’s Compensation Board for an award.