Claim of Lindemann v. Reid Ice Cream Corp.

222 A.D. 700

Opinion

Per Curiam.

If Frank Rowan, the prior husband of Helen Rowan Lindemann, was alive at the time of her marriage to Cecil Lindemann, September 27, 1924, the latter marriage was void for the reason that she had failed to have the prior marriage dissolved under the provisions of section 7-a of the Domestic Relations Law. If Rowan had died prior to the second marriage, then that marriage was valid and the claimant was entitled to an award as widow of Lindemann, and likewise an award to the stepson was justifiable. The common-law presumption of death arising from seven years’ absence unaccounted for in any way (Butler v. Mutual Life Ins. Co., 225 N. Y. 197) is not available to the claimant here for it appears that Rowan was discharged from the military service of the United States on June 9, 1919; and there is no sufficient proof in this record to indicate his death. It is possible that such proof may be furnished at another hearing, either by direct evidence or by circumstances. (See Wigm. Ev. § 2531; Oppenheim v. Wolf, 3 Sandf. Ch. 571; Fidelity Mutual Life Assn. v. Mettler, 185 U. S. 308; Harvey v. Fidelity & Casualty Co., 200 Fed. 925, 928; 17 C. J. 1176, § 21, and cases cited.) Cochrane, P. J., Van Kirk, McCann, Davis and Whitmyer, JJ., concur. That part of the award which allows compensation to Helen Lindemann, as widow, and Archie Lindemann, as dependent stepson, is reversed, and claim remitted, with costs against the State Industrial Board to abide the event.