Sprague v. Sprague

Judgment reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event. The evidence as to the existence of the alleged common-law marriage between plaintiff and Kent does not approximate that required in order to constitute a common-law marriage (Graham v. Graham, 211 App. Div. 580, 582), for the reason that it fails to disclose any present consent of the plaintiff and Kent to take each other as husband and wife, to enter into a relation to continue until death, with the resulting obligations of husband and wife. Furthermore, the evidence discloses that the period during which the alleged common-law marriage is said to have existed was one in which it was legally impossible to contract such a marriage. (Matter of Hinman, 147 App. Div. 452.) Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.