Larremore, J.
The plaintiffs, as widow and heirs at law of William B. Hynes, deceased, brought suit in ejectment, and for the recovery of mesne profits, of premises situated on the north-easterly corner of Madison avenue and Twenty-seventh street, in the city of New York.
The action was originally commenced against the tenants [11]*11in possession, and was subsequently amended by the joinder of the heirs at law of the deceased intestate, the acknowledged owner of the premises in dispute. The main question to be decided is that which relates to the marriage between the parties, and the legitimacy of the children as a result of such marriage.
In addition to the general issue, the judge, at trial term, submitted the following special findings of fact:
First. “Did Wm. R. Hynes and the plaintiff, Mary Eliza Hynes, at 169 Cleveland street, in the city of London, enter into an agreement, to be then and from thenceforward, man and wife, upon the occasion, in the evening of the last Wednesday of May, 1871, testified to by Mr. and Mrs. Ardray ?”
Second.- “Did Wm. R. Hynes and the plaintiff, Mary Eliza Hynes, thenceforward cohabit together in the open and acknowledged relation of man and wife ?”
Third. “ Was Wm. R. Hynes, at the time of said agreement, a citizen of the State of New York, and temporarily sojourning in England ?”
Fourth. “ Was the agreement made with the Iona, fide intention on the part of Wm. R. Hynes, to contract a valid marriage, according to the laws of the State of New York, and to return to the said State and reside theré with the said Mary E. Hynes as his wife, and did that intention continue up to the time of his death ?”
Fifth. “ Did Wm. R. Hynes, deceased, and Mary E. Hynes, in May or June, 1871, while crossing the English Channel, enter into an agreement by which they consented to take each other then and there as man and wife ?”
Sixth. “ Did Wm. R. Hynes, deceased, and Mary E. Hynes, in June, 1871, in France, enter into an agreement by which they consented to take each other, then and there, as man and wife
Seventh. “Is the infant plaintiff, Wm. R. Hynes, the child of W m. R. Hynes, deceased ? ”
Upon all of said special findings the jury found in the affirmative.
[12]*12This appeal being from the order denying the motion for a new trial on the judge’s minutes, as well as from the judgment, brings all the evidence up for review at the general term. There can be no doubt of the right of that tribunal to review and reverse a verdict, which upon due examination, appears to have been influenced by passion or prejudice, or one that is clearly against the weight of evidence (Macy v. Wheeler, 30 N. Y. 237; Courtney v. Baker, 60 N. Y. 6 ; Boos v. World Mutual Life Ins. Co., 64 N. Y. 242).
But such an appeal should be addressed to sound discretion, and an unmistakable conclusion upon the facts as found.
We are called upon to deal with the validity of a marriage affecting rights of property within this State. If it shall appear that the findings of the jury support the existence of such a contract, and the various exceptions in the case are shown to be untenable, then the judgment appealed from must be affirmed.
The question, what constitutes a legal marriage, is always important and often difficult to answer. The peculiar nature and sacredness of the relation, the delicate interests involved and the grave responsibilities depending upon it, invite and demand the most careful judicial scrutiny and discrimination.
Elementary writers have busied themselves with the dis: cussion, whether the marriage relation was a mere contract or a status. But legislatures have prescribed the essentials, and courts of law have pronounced upon the, validity of that relation. Necessarily then, where independent sovereignties differ, diversity of authority upon this subject must exist. In our own country we often find a marriage, valid in one state, unrecognized in another.
What, then, is to govern where authorities conflict? Shall it be the “lex domicilii,” the “lex contractus” or the “lex loci rei site ” ? Judge Story appears to have regarded marriage as “ an institution of society ” and not merely a contract which the parties thereto might dissolve at pleasure.
This would seem to be the natural, reasonable and moral aspect of such a relation. But nevertheless the authorities in [13]*13this State, point to the conclusion that marriage is nothing more or less than a civil contract.
We come then to the consideration of the alleged marriage between the parties, as shown by the testimony. It is not claimed that its validity has been established, in accordance with the law of England; but the proposition is urged that the reiteration of the marriage vow on the British Channel, and in France, solemnized an act which it was the intention of the parties to consummate.
The testimony of Mrs. Hynes is unimpeached. The jury believed it, and an appellate court, in the absence of gross error or mistake, should hesitate to disregard their findings. It is apparent then, if we are to accept the testimony produced and the verdict rendered, that it was the intention of the parties to enter into the marriage relation. That such relation was followed by its recognition by the deceased, cohabitation and birth of offspring is beyond dispute; and we are now asked, as against the weight of evidence, to reverse the judgment rendered. The facts thus established invoke the old rule of law, “ semper praesumitur pro matrimonio,” and the burden of proof is thus cast upon the defendants.
What have they offered to disprove the fact of marriage ? A registry of baptism with which Mrs. Hynes is not shown to have been connected, and an offer of proof of a lease of premises taken in her former name of Saunders, "which she failed to identify.
The jury have found, as above shown, that Win. R. Hynes at the time of his alleged contract of marriage was a citizen of the State of Hew York and temporarily sojourning in London; and that the parties to said contract entered into the same with the intention of returning to and residing in the State of Hew York. Mr. Hynes owned property in the city of Hew York, that he once resided here is undisputed, and I cannot, confronted by the verdict of the jury, hold that he was not a resident of this State at the time of his alleged marriage.
This court is on record as to a marriage of this character— per verba de presentí (Davis v. Davis, 7 Daly, 308), and the [14]*14same theory is affirmed by the supreme court of the United States in Meister v. Moore (6 Otto, 76).
Conceding, however, for the purpose of argument, the inT validity of the marriage in. England, that upon the English Channel and the subsequent. one in France next claim attention.
There was no proof of the nationality of the vessel in which the parties sailed, and the court cannot indulge in inferences upon this point (Piers v. Piers, 2 H. L. Cas. 331; Morris v. Davies, 5 Clark & F. 163; Bishop Mar. & Div. 457).
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Larremore, J.
The plaintiffs, as widow and heirs at law of William B. Hynes, deceased, brought suit in ejectment, and for the recovery of mesne profits, of premises situated on the north-easterly corner of Madison avenue and Twenty-seventh street, in the city of New York.
The action was originally commenced against the tenants [11]*11in possession, and was subsequently amended by the joinder of the heirs at law of the deceased intestate, the acknowledged owner of the premises in dispute. The main question to be decided is that which relates to the marriage between the parties, and the legitimacy of the children as a result of such marriage.
In addition to the general issue, the judge, at trial term, submitted the following special findings of fact:
First. “Did Wm. R. Hynes and the plaintiff, Mary Eliza Hynes, at 169 Cleveland street, in the city of London, enter into an agreement, to be then and from thenceforward, man and wife, upon the occasion, in the evening of the last Wednesday of May, 1871, testified to by Mr. and Mrs. Ardray ?”
Second.- “Did Wm. R. Hynes and the plaintiff, Mary Eliza Hynes, thenceforward cohabit together in the open and acknowledged relation of man and wife ?”
Third. “ Was Wm. R. Hynes, at the time of said agreement, a citizen of the State of New York, and temporarily sojourning in England ?”
Fourth. “ Was the agreement made with the Iona, fide intention on the part of Wm. R. Hynes, to contract a valid marriage, according to the laws of the State of New York, and to return to the said State and reside theré with the said Mary E. Hynes as his wife, and did that intention continue up to the time of his death ?”
Fifth. “ Did Wm. R. Hynes, deceased, and Mary E. Hynes, in May or June, 1871, while crossing the English Channel, enter into an agreement by which they consented to take each other then and there as man and wife ?”
Sixth. “ Did Wm. R. Hynes, deceased, and Mary E. Hynes, in June, 1871, in France, enter into an agreement by which they consented to take each other, then and there, as man and wife
Seventh. “Is the infant plaintiff, Wm. R. Hynes, the child of W m. R. Hynes, deceased ? ”
Upon all of said special findings the jury found in the affirmative.
[12]*12This appeal being from the order denying the motion for a new trial on the judge’s minutes, as well as from the judgment, brings all the evidence up for review at the general term. There can be no doubt of the right of that tribunal to review and reverse a verdict, which upon due examination, appears to have been influenced by passion or prejudice, or one that is clearly against the weight of evidence (Macy v. Wheeler, 30 N. Y. 237; Courtney v. Baker, 60 N. Y. 6 ; Boos v. World Mutual Life Ins. Co., 64 N. Y. 242).
But such an appeal should be addressed to sound discretion, and an unmistakable conclusion upon the facts as found.
We are called upon to deal with the validity of a marriage affecting rights of property within this State. If it shall appear that the findings of the jury support the existence of such a contract, and the various exceptions in the case are shown to be untenable, then the judgment appealed from must be affirmed.
The question, what constitutes a legal marriage, is always important and often difficult to answer. The peculiar nature and sacredness of the relation, the delicate interests involved and the grave responsibilities depending upon it, invite and demand the most careful judicial scrutiny and discrimination.
Elementary writers have busied themselves with the dis: cussion, whether the marriage relation was a mere contract or a status. But legislatures have prescribed the essentials, and courts of law have pronounced upon the, validity of that relation. Necessarily then, where independent sovereignties differ, diversity of authority upon this subject must exist. In our own country we often find a marriage, valid in one state, unrecognized in another.
What, then, is to govern where authorities conflict? Shall it be the “lex domicilii,” the “lex contractus” or the “lex loci rei site ” ? Judge Story appears to have regarded marriage as “ an institution of society ” and not merely a contract which the parties thereto might dissolve at pleasure.
This would seem to be the natural, reasonable and moral aspect of such a relation. But nevertheless the authorities in [13]*13this State, point to the conclusion that marriage is nothing more or less than a civil contract.
We come then to the consideration of the alleged marriage between the parties, as shown by the testimony. It is not claimed that its validity has been established, in accordance with the law of England; but the proposition is urged that the reiteration of the marriage vow on the British Channel, and in France, solemnized an act which it was the intention of the parties to consummate.
The testimony of Mrs. Hynes is unimpeached. The jury believed it, and an appellate court, in the absence of gross error or mistake, should hesitate to disregard their findings. It is apparent then, if we are to accept the testimony produced and the verdict rendered, that it was the intention of the parties to enter into the marriage relation. That such relation was followed by its recognition by the deceased, cohabitation and birth of offspring is beyond dispute; and we are now asked, as against the weight of evidence, to reverse the judgment rendered. The facts thus established invoke the old rule of law, “ semper praesumitur pro matrimonio,” and the burden of proof is thus cast upon the defendants.
What have they offered to disprove the fact of marriage ? A registry of baptism with which Mrs. Hynes is not shown to have been connected, and an offer of proof of a lease of premises taken in her former name of Saunders, "which she failed to identify.
The jury have found, as above shown, that Win. R. Hynes at the time of his alleged contract of marriage was a citizen of the State of Hew York and temporarily sojourning in London; and that the parties to said contract entered into the same with the intention of returning to and residing in the State of Hew York. Mr. Hynes owned property in the city of Hew York, that he once resided here is undisputed, and I cannot, confronted by the verdict of the jury, hold that he was not a resident of this State at the time of his alleged marriage.
This court is on record as to a marriage of this character— per verba de presentí (Davis v. Davis, 7 Daly, 308), and the [14]*14same theory is affirmed by the supreme court of the United States in Meister v. Moore (6 Otto, 76).
Conceding, however, for the purpose of argument, the inT validity of the marriage in. England, that upon the English Channel and the subsequent. one in France next claim attention.
There was no proof of the nationality of the vessel in which the parties sailed, and the court cannot indulge in inferences upon this point (Piers v. Piers, 2 H. L. Cas. 331; Morris v. Davies, 5 Clark & F. 163; Bishop Mar. & Div. 457).
Assuming then, as the verdict of the jury warrants, that the parties, who were able to contract, did contract a marriage with a view to a future residence in the State of New York, of which one of the contracting parties has been found to have been a resident, the presumption is in favor of the validity of the marriage (Clayton v. Wardell, 4 N. Y. 230; Caujolle v. Ferrié, 23 N. Y. 90; Bissell v. Bissell, 55 Barb. 325).
The testimony offered to prove the French law as to marriage, did not meet the requirements of our statute. It demands that the authenticity of a foreign law or statute be established.
The testimony of Michael Bey (the witness called for that purpose) showed that he had not been in France since 1859,- and the Code of law produced was published subsequent to his departure from that country. Moreover, the witness testified that there were Codes of the French law edited or published by Seriat, Bogron, and by a great many other people.
What reliability can be placed upon such testimony ? Does it establish as a fact what the law of France was when this marriage was alleged to have been contracted % Clearly not. Since 1859 that law may have been repealed, modified or so amended as to embrace the legality of the marriage in question. The defendants were bound to establish affirmatively what the law of France was at the time of this marriage.
I find no error in the refusal of the judge at trial to admit [15]*15the testimony of the witness Loader in relation to a comparison of the handwriting of Mrs. Hynes. The rule is well settled, that signatures cannot he shown in evidence merely for the purpose of comparison, but only when the instrument to which they are affixed has been offered in proof of some other fact ( Wharton Ev. § 712, 713 ; Van Wyck v. McIntosh, 14 N. Y. 439; Moore v. U. S., 1 Otto, 270).
I have reviewed the several exceptions in this case and find no substantial error in the rulings. It was tried upon the theory that a citizen of this State, temporarily sojotirning abroad, should, so far as property in this State is concerned, be held to the consequences of his own act. The jury having found affirmatively on all the distinctive facts at issue, and no error of record appearing, the judgment and order appealed from should be affirmed, with costs.
Van Brunt, J.
The rule seems to be well settled that the validity of a marriage is to be determined by the lex loci contractus. So well recognized had this rule become that Congress, in 1860, found it necessary to pass an act in relation to the marriage of American citizens in foreign countries.
American citizens had been in the habit of entering into marriage contracts at the various consulates according to the law of their domicil, under the supposition that as the consulate was under the American flag, the contract was to be deemed to have been entered into upon American soil, and therefore valid, and to be governed by the lex domicilii, no matter what might be the law regulating marriage of the country in which the consulate was situated. This position, however, being rec'ognized as entirely false, and it being established that the lex' loci determined the, validity of such marriage, Congress, in 1860, passed an act providing that “ marriage in the presence of any consulate officer of the United States, between persons who would be authorized to marry if residing in the District of Columbia, shall be valid to all intents and purposes, and shall have the same effect as if so solemnized within the United States.”
[16]*16It is true that decisions may be found applying the lem domicilii to such contracts, but in every such case the recognized rule of law has been put aside, because of the hardship which it would work in that particular case.
The marriage in the case at bar, which is alleged to have been entered into in London, would seem to be void.
As to the marriage entered into upon the packet running between Dover and Calais, it would, it seems to me, be a violent presumption to suppose that the vessel carried the American flag. The vessel appears to have been one plying between Dover, an English port, and Calais, a French port, only twenty-one miles distant.
The marriage which the jury found was entered into in France was not a ceremonial marriage, but an agreement of marriage entered into per -verba de prcéenU.
Such a marriage is valid according to the laws of the State of New York, and according to the common and civil law; and as there was no competent evidence given as to what the law of marriage is in France, as is shown by Judge Labbemobe’s opinion, the presumption is that the law of France is either the same as that of the State of New York, or the common or civil law; and as the marriage contract found by the jury to have been entered into in France is valid by either of these laws, such marriage must- be held by the courts of this State to be valid. The judgment must be affirmed, with costs.
Beach, J., concurred.
Judgment and order affirmed.
The judgment entered upon this decision was affirmed by the court of appeals, September 31st, 1880 (see 83 1ST. T. 41).