Peugnet v. Phelps

48 Barb. 566, 1867 N.Y. App. Div. LEXIS 46

• Court: New York Supreme Court
• Decided: April 1, 1867
• Status: Published

Opinion

Clerke, J.

This court has no inherent power to declare a marriage contract void; neither has it inherent power to decree a limited or an absolute divorce. • The common law courts, or court of chancery in England, never possessed it. The jurisdiction in relation to marriage and divorce was confined, until very recently, to the ecclesiastical courts; although parliament frequently granted divorces dissolving the marriage contract for adultery.

Whatever power, therefore, this court possesses is given by statute. It can exercise no power, on the subject of divorce, except what is expressly specified in the statute.

The power to declare any marriage void is contained in chapter 8, part 2 of the Eevised Statutes, title 1, article 2. The cases in which it is given are enumerated in that article ; and the case, upon which this application is founded, is not included among them. It appears to me, therefore, clear that this court has no jurisdiction in this matter and that to grant the relief demanded would be a plain usurpation of authority.

Whatever may be the punishment to which the defendant is liable for disobeying the command of the court, forbidding her to marry again, is another question, with which T have no concern on the present occasion.

The complaint is dismissed, with costs.

Clerke, Justice.]