The Albany Law Journal.

ALBANY, AUGUST 15, 1896.

Current Topics.

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IVE chapters of the Greater New York charter have been completed by the sub

committee on draft.

pass any ordinance involving the expenditure of money or the laying of an assessment, the lease of real estate or grant of a franchise. A five-sixths vote is required to pass such an ordinance over the mayor's veto. Other ordinances may be passed over his veto by a twothirds vote.

The mayor of the new municipality is to be elected every two years. To center in him responsibility for the administration of municipal affairs he is clothed with power to appoint all heads of departments, except the comptroller and city chamberlain, who are to be elected by the people. He is empowered to remove at will all appointed by him. All the departments are made single headed, except that of taxes and assessments and that of docks, each of which is to consist of three commissioners. All the department heads are appointed for two years, except the president of the depart

With the chapters yet to be prepared they have, of course, to be submitted to and passed upon by the full committee. They are, therefore, subject to modification, either by the subcommittee, which has drafted them or the full committee. They are wisely given to the public at this time with the view of eliciting helpful criticism or suggestions as to their provis-ment of taxes and assessments, who, with the ions.

The official name of the consolidated municipality is to be "The City of New York." Its government is vested in a legislative body called the Municipal Assembly, a mayor, heads of departments and borough boards.

The Municipal Assembly is composed of a

council and a board of aldermen. The council consists of nineteen members, chosen for

two years. The president is elected by the voters at large of the consolidated city. The

other eighteen members are chosen by the

two other tax commissioners, are appointed for six years.

The novel feature of the charter is the borough system. Greater New York is divided into nine boroughs. Of these five are in this city, two in Brooklyn, one in Queens county and one on Staten Island. Each borough has a board of five members, who are elected by the voters of the borough for two years and serve without compensation. The jurisdiction of the board is confined to the borough and

borough boards, each borough being entitled to "those subjects or matters the costs and exto two councilmen. In case of the mayor's ill-penses whereof are to be borne by the people ness or absence from the city, the president of or property of such borough." Every resoluthe council is to act as mayor. The council tion or ordinance passed by the board is subappoints a clerk, who is to be also the city clerk.ject to approval or disapproval of the mayor of the city. A veto by the mayor of any ordinance or resolution is final, and may not be

The board of aldermen is to consist of one member from each assembly district, about sixty in all, elected by the voters of the dis-overriden by the board. The jurisdiction of the board is restricted to matters of local concern. trict for two years. The board will choose its own president. Every administrative department head will be entitled to a seat in the board, with a voice in its discussion, but no vote. The powers which may be exercised by the Municipal Assembly are enumerated and defined in the charter. They cover all matters of general municipal legislation. No ordinance or resolution shall be passed except by a majority vote of the members elected to each branch. A three-fourths vote is necessary to VOL. 54 No. 7.

This proposed feature of the charter has already caused no little discussion and difference of opinion." It has suggested to many minds," says Commissioner De Witt, "a disturbance of the unity and integrity of the municipality, and to others the possibility of a multiplicity of officers, entailing unnecessary expense." To these objections the commmissioner replies:

A careful reading of the chapters on the legislative and executive powers will show that

for after her divorce.

To the same effect are

the unity and integrity of the city is carried to a point of the utmost centralization. And the cases of Peters v. Peters, supra; Libby v. other chapters yet to be published will make it Berry, supra; Abbott v. Abbott, supra; Meclear that with the exception of deputy admin-whirter v. Hatten, supra; Grant v. Green, cuistrative offices to be located in the borough of pra. But counsel for appellant insists that | Brooklyn, the borough of Queens and the bor- she obtained the divorce from appellant on the ough of Richmond-all being absolutely under ground that the marriage on the part of the apthe one head of the chief municipality - the pellee was fraudulent, and that she has a cause boroughs have no offices except a local board of of action after said divorce, against him, for five in each, who serve without compensation, her seduction.' It is true that it is alleged in and who are to take care of local improve- the first and second paragraphs of the comments, the payment for which is exacted in ad- plaint, that appellee fraudulently married appelvance from a district of assessment within the lant to avoid imprisonment, and that he did borough, or from the borough itself; and to not intend to live or cohabit with her as a huscare for and look after such home and neigh- band, or keep his marriage vows, but to desert borhood matters as may be intrusted to them her, and that he did, immediately after said by the Municipal Assembly of the unique and marriage, leave, abandon and desert her, and supreme city. never lived or cohabited with her after said marriage, and refused to support appellant, although he was able to do so; but it is not al

Whatever modifications may be found necessary or desirable in these five chapters, their prompt preparation and submission to the pub-leged that the divorce was granted on this lic show that the sub-committee on draft has taken hold of the work in earnest and appreciates the importance of having completed a draft of the charter by the time the Legislature

meets.

A curious case has been decided by the Supreme Court of Indiana, in Henneger v. Lomas, 44 N. E. Rep. 462, in which the court holds that, under the statute of the State providing that "any unmarried female may prosecute, as plaintiff, an action for her own seduction," that a woman cannot, after marrying her seducer, and then obtaining a divorce, sue him for the seduction. It further held that the rule of the common law that marriage extinguishes the ante-nuptial right of action between husband and wife, and that it was not revived by divorce, is not changed by statute. It is held, however, that though a woman marries her seducer, she may, if the court has rendered a decree of nullity as to the marriage, sue him for the seduction. The opinion of the court, in part, as to the wife's right of action, is as follows:

"It is evident, from what we have said, and the authorities cited, that appellant's right of action against appellee for her seduction was extinguished by their marriage, and that she could not maintain an action against him there

ground. Without such an averment, it must be presumed that the word 'divorce' was used in its ordinary sense, and that such divorce was granted appellant for some statutory cause. Miller v. Miller, 33 Cal. 353. If, however, it was alleged in said paragraphs that the divorce was granted to appellant from appellee on account of the alleged fraud on the part of appellee, it would be equivalent to an allegation that the court had granted appellant a decree of nullity, and adjudged that said marriage was void. Substance, not names or form, controls

in determining the meaning, character and effect of a pleading, or the judgment or decree of a court. Fraud is not a cause of divorce, but a marriage voidable on the ground of fraud may be adjudged void by a court of competent jurisdiction. While the term 'divorce' is not properly applicable to a decree of nullity, yet such a decree is often called a divorce.' (14 Am. & Eng. Enc. Law, 532; 1 Bish. Mar. & Div. (Ed. 1881). § 166.) In 2 Bish. Mar. & Div. (Ed. 1891), it is said: 'Not infrequently the judicial declaration of nullity is called a 'divorce.' It is properly so where the marriage it declares void was only voidable. For example, it is common and correct language to speak of impotency as a cause for divorce. And Blackstone writes that divorce a vinculo matrimonii must be for some of the canonical causes of impediment. But the expression sentence'

206; 2 Kent Comm. 767; Schouler Dom. Rel. 35.)

In England, the power to annul marriages. was exercised by the ecclesiastical courts, and the principles and practice concerning such jurisdiction constituted a part of the common law of that country, and was, therefore, adopted as the law of this State by statute. (Section 236, Rev. St 1881 (§ 236, Rev. St. 1894); Tefft v. Tefft, supra.) Courts having the jurisdiction of courts of equity, under the general power to annul fraudulent contracts, have also

fraud. (Clark v. Field, supra; Keyes v. Keyes, 22 N. H. 553; Burtis v. Burtis, 1 Hopk. Ch. 557; Wightman v. Wightman, 4 Johns. Ch. 343; Carris v. Carris, supra.) In Bishop v. Redmond, supra, appellee charged in her complaint that Redmond, one of appellants, married her in the evening, and abandoned her the next morning; that prior to the marriage, he seduced her, and that she was the mother of a bastard child begotten by him; that after he had seduced her, he conceived the fraudulent scheme of cheating her by marrying and abandoning her, and by conveying before marriage all of his property; that Jacob Bishop, his coappellant, conspired with him in this fraudulent design, and, for the purpose of aiding in carrying it into effect, received a conveyance of land from him; that the conveyance was with

or 'decree of nullity' equally will indicate the legal avoidance of a voidable marriage; and it seems more significant, and less liable to be misunderstood, than the other, and somewhat. better in accord with modern usage.' The question presented by the demurrer to the third paragraph of the amended complaint is whether a woman, who has been seduced, and marries her seducer, and the court afterwards, on her application, adjudges that said marriage was void, can, after such decree, bring and maintain an action against him for said seduction, under section 263, Rev. St. 1881 (§ 264, Rev. | jurisdiction to annul a marriage on account of St. 1894). An action for divorce is brought for the purpose of dissolving a marriage, while a nullity suit is brought for the purpose of having a void marriage declared void, or a voidable marriage judicially made void. In the divorce suit the marriage is recognized as valid, and adjudged to be dissolved from the date of the decree; but in the nullity suit the marriage is not recognized, but is adjudged void - that is, that there was no marriage and the rights of the parties are the same as if the marriage had never taken place. (1 Bish. Mar. & Div. [Ed. 1891], $ 259, 271.) It follows that the rule established in this State, that all property questions between husband and wife are presumed to be adjudicated in the decree of divorce, does not apply to a decree of nullity, and can, therefore, have no application to this case. A marriage which is procured by fraud is void-out consideration, and was made to and reable at the suit of the injured party, and may be declared void by judicial decree. The courts have jurisdiction of such actions, independently of any provision of the divorce law. (Bishop v. Redmond, 83 Ind. 157; Tefft v. Tefft, 35 Ind. 44, 50, and cases cited; Mason v. Mason, 101 Ind. 25, 28; Clark v. Field, 13 Vt. 460, 472; Le Barron v. Le Barron, 2 Am. Law Reg. [N. S.] 212; Ferlat v. Gojon, 1 Hopk. Ch. 478; Gillett v. Gillett, 78 Mich. 184; 43 N. W. 1101; Smith v. Smith, 51 Mich. 607; 17 N. W. 76; Tomppert's Ex'rs v. Tomppert, 13 Bush, 326; Lyndon v. Lyndon, 69 Ill. 43; True v. Ranney, 21 N. H, 52; Robertson v. Cole, 12 Tex. 356; McKinney v. Clarke, 2 Swan, 321, 324; Willard v. Willard, 6 Baxt. 297; Carris v. Carris, 24 N. J. Eq. 516; 2 Bish. Mar. & Div. (Ed. 1891), § 803; 1 Bish. Mar. & Div. (Ed. 1891), $$ 471-473, 476, notes and 2; id., §§ 477, 543, 544; Reeve Dom. Rel.

ceived by Bishop for the sole purpose of giving effect to the fraudulent scheme to defraud appellee. Prayer that a divorce be granted, alimony awarded, and the fraudulent conveyance set aside. This complaint did not state any statutory cause for a divorce, but did state facts sufficient to entitle appellee to a decree of nullity on the ground of fraud. It was only upon this theory that the action of the trial. court could be sustained. The difference between that action and the one at bar is that in that action the injured party sought and obtained the decree of nullity and damages (incorrectly called "alimony" in the complaint and the decree of the trial court), in the same action, while in this the decree of nullity was first procured, and the action for damages. brought afterwards. It was shown by the evidence in that case that Elijah Redmond had carnal knowledge of appellee in June, 1879;

ment. They boarded her, taking the boxes with them, which they opened, distributing the arms among themselves. They drilled to some extent on board, and were apparently officered; and, as preconcerted, they disembarked near the coast of Cuba, to effect an armed landing thereon. Held, that the jury had a right to find that this was a military expedition or enterprise, within the meaning of the Neutrality law.

petent jurisdiction. (Section 1025, Rev. St. 1881 [section 1037, Rev. St. 1894].) It is not material, however, upon what ground the decree of nullity was granted to appellant; for the court had jurisdiction, and the decree, even if erroneous, is binding on appellant and appellee, and cannot be questioned in this case. Nothing in the opinion is in conflict with doctrine declared in State v. Otis, 135 Ind. 267, 34 N. E. 954, cited by appellee. In that case this court held that in case of the seduction of a female under the age of twenty-one years under promise of marriage, in violation of the provisions of section 1992, Rev. St. 1881 [sec-nition (the United States being at peace with

tion 2078, Rev. St. 1894], the subsequent marriage of the parties was a bar to the further pros ecution for such crime. The wife in that case had not attempted to have the marriage set aside for fraud, and the marriage was therefore binding upon the parties and all other persons, including the State, until its nullity was declared

It was proper for the court to charge that any combination of men organized in the United States to go to Cuba, to make war upon its government, provided with arms and ammu

Cuba), constituted a military expedition; and be drilled, put in uniform, or prepared for effithat it was not necessary that the men should cient service; but that it was sufficient that they United States to go to Cuba and make war on should have combined and organized in the a foreign government, and should have proby a competent tribunal. (Tomppert v. Tomp-vided themselves with the means of doing so. (73 Fed. 159, affirmed.)

pert, supra.) If the wife in that case had obtained a decree of nullity against Otis, it would have been a judgment of the court that no marriage had ever existed between them, and the fact that there had been a marriage voidable at the election of the wife would not have been available as a defence by Otis after such decree of nullity.

The recent conviction of Dr. Jameson and his confederates for the raid into the Transvaal, in violation of the neutrality obligations of Great Britain, reminds us of the case of Wilborg v. United States (16 Sup. Ct. Rep. 1127), in which the conviction of the captain of a filibustering steamer, for violating the United States neutrality laws was affirmed. The syllabus in this case is very interesting in view of the conviction of Dr. Jameson, and was as follows: Rev. St. sec. 5826, making it a criminal offense to provide or prepare the means for a military expedition or enterprise against a people with whom the United States are at peace, applies to the providing or preparing the means of transportation for such an expedition or enterprise.

If the officers of a foreign vessel, sailing from a United States port, which, after passing the three-mile limit, took aboard men and arms for an expedition in violation of the Neutrality law, had prepared for sailing, and had taken aboard extra boats while in port, with knowledge of the proposed expedition, they were guilty of the crime in the district from which they sailed. A statement made by the court while recapitulating the evidence that defendants were armed, having rifles and cannon, and were provided with ammunition and other supplies, which was based on uncontroverted testimony, is not ground for reversal; no rule of law being incorrectly stated, and the matters of fact being specifically submitted to the determination of the jury.

On a trial for a violation of the Neutrality law, the court said that it seemed to it to be free from reasonable doubt that certain acts in which defendants participated constituted a military expedition, but that the question was for the determination of the jury alone, and that it was submitted to them as such, "reminding you that the responsibility of deciding A body of men went on board a tug loaded it rests upon you alone,” and that, if they were with boxes of arms, and were taken by it thirty not fully satisfied that it was such an expedior forty miles out to sea, when they met a steamer tion, their verdict should be for defendants. outside the three-mile limit, by prior arrange-Held, that the observation of the court did not