(dissenting). The appellant in company with the petitioner on March 4, 1939, went to Manassas, Va., where they were married. After the wedding breakfast, which took place in Washington, D. C., they returned to New York. That evening the petitioner concededly resumed her work as a housemaid in order to finish out the period for which she had contracted and to give her employer an opportunity to replace her. Subsequently the parties resided together. Seventeen days after the marriage ceremony was performed, the petitioner concededly left the appellant’s home. The excuse she assigned for so doing was indeed very flimsy.
The appellant on his part asserts that the marriage was never consummated, whereas, the petitioner claims that it was. The latter instituted a proceeding in the Family Court, Borough of Manhattan, to compel the appellant to support her on the theory that she was likely to become a public charge. After a hearing, the appellant was directed to pay to the petitioner the sum of eight dollars a week for her support and maintenance. Thereafter a rehearing was set for October 23, 1939. About a week later the attorney for the appellant was notified by the clerk of the court that the application for a rehearing was denied.
It is the contention of the appellant that the court, at the time the original order of support was made, did not have jurisdiction of the subject-matter of the controversy since the conventional relationship of husband "and wife did not then exist under the provisions of section 91 of the Domestic Relations Court Act of the city of New York. He based his claim upon the fact that in *2461920 he had married another woman in the State of New Jersey and that marriage never having been dissolved, and his first wife being still alive, it was in full force and effect on March 4, 1939, at the time petitioner and appellant presumably were married in the State of Virginia.
- If the statements contained in the affidavit of appellant are true, then the marriage which was entered into between the petitioner and appellant was void and consequently the Family Court had no jurisdiction to make the order of which appellant complains. That the court had power to vacate the original order cannot be denied since section 92, subdivision 16, of the Domestic Relations Court Act gives ample authority.
While it may be contended that the appellant should have raised the question which he now urges at the time the original hearing was held, still, since it relates to the subject-matter of the controversy, he is not estopped even now. In Matter of Walker (136 N. Y. 20) Judge Maynard said in part: “ The objections to this decree are jurisdictional. The consent of the parties is not sufficient to avoid their fatal effect. Wherever there is a want of authority to hear and determine the subject-matter of the controversy, an adjudication upon the merits is a nullity and does not estop even an assenting party.” (See, also, Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315; Davidson v. Ream, 178 App. Div. 362, and McConnell v. Williams Steamship Co., Inc., 239 id. 393; affd., 265 N. Y. 594.) If the Virginia marriage was void, the Family Court did not have jurisdiction to make the order providing for support. Under the circumstances a formal hearing should have been had in order for the court to determine, upon the evidence, whether or not the parties to the proceeding actually entered into a valid marriage. A question somewhat analogous to the one here presented arose in Marianacci v. Marianacci (164 Misc. 467). There Judge Panken, after reviewing the facts, said in part: “ Upon all of the facts as herein set forth, I conclude that the respondent is entitled to an opportunity to submit proof of the invalidity of the marriage upon which he has entered with the petitioner and upon adequate proof submitted establishing the facts alleged by him, the court has the power to vacate the order in so far as the petitioner is concerned. The order would in face of a void marriage have no legal force. It would be a nullity.”
The order appealed from should be reversed and the matter remitted to the Family Court for a hearing.
Order affirmed.