The issue is whether or not the marriage in suit is valid in law in New York State; and the conclusion depends *678upon whether or not the marriage is affected by section 11 of the Domestic Eelations Law, as amended by chapter 606 of the Laws of 1933.
The parties to the marriage were at all relevant times residents of the State of New York. The woman is plaintiff. The man is dead and defendants are the executors named in his will. The action is for a judgment declaring that the plaintiff was the wife and is now the widow of the deceased. After a lengthy trial before the court, without a jury, judgment has been granted in favor of plaintiff, as demanded in the complaint.
The plaintiff and the decedent met in 1934 at a time when she was still the wife of another man. In January, 1935, she obtained, in Illinois, a decree of divorce from her husband. Since that date, and apparently before, and until the death of defendants ’ intestate in 1940, the plaintiff and the intestate lived together in the same household in New York, acknowledged themselves to be man and wife to friends and relatives, and in many other ways conducted themselves as formally married couples usually do. During that five-year period the couple made frequent visits to places outside this State where common-law marriages are valid; and there, too, they made repeated acknowledgments of their marriage; registered and stayed at hotels as “ Mr. and Mrs.,” and the like. On at least one occasion in New York they stated that they had been married outside the State. At no time and at no place, however, did they participate in a marriage solemnization as required by the provisions of section 11 of the Domestic Eelations Law. The void caused by the lack of proof usually relied on in these cases, that is, testimony of one of the parties, or of a witness, to the exchange of promises, is sought to be filled by proof of the creation of the status without the State in jurisdictions where such marriages are valid, together with evidence in support or corroboration thereof by proof of cohabitation and reputation within the State. There is evidence in the record which shows that the plaintiff used a name which under ordinary custom does not indicate that she was the wife of the decedent, and that the decedent made public record reports in which he styled himself as single or unmarried. But if the evidence which relates to the conduct of the parties within the State is given credence and considered, the cumulative mass with respect to acknowledgment of marriage by the parties themselves, reputation, and the like, in and out of the State, is of such weight as to fully justify, in my opinion, the finding that the parties consented to be husband and wife and that a marriage existed under common-law concepts.
*679Common-law marriages are not valid in New York State, however. (Domestic Relations Law, § 11 as amd. by L. 1933, ch. 606.) To the familiar elements necessary to establish a common-law marriage our statute has added the element of solemnization ; and thus it seems that a marriage, otherwise valid, is not valid here unless it has been solemnized by one of the means stated in the statute. It would seem that the Legislature has taken an element which has been otherwise recognized as formal and promoted it to a position of substantive importance. It can hardly be doubted that such is the purpose and intent of the statute insofar as marriages entered into in New York State are concerned. Here the problem is involved, in that proof of acknowledgments and conduct of the parties in territorial jurisdictions where common-law marriages are valid is sought to be bolstered and supported by proof of like conduct of the parties within the State, presenting the question of whether the two phases of proof, taken together, are sufficient to persuade the courts of this State, despite the local statute, to recognize the validity of the marriage alleged to have been so erected by two residents of this State. The answer to the question is not free from doubt. The statute states, “ No marriage shall be valid unless solemnized by either: ” and then follows a list of clerics, public officials, and a description and means of executing a written agreement.
From some earlier decisions it is easy to conclude that two residents of New York, who could not enter into a valid common-law marriage here, might go to another State where such marriages are valid, enter into such a contract, return here, and have the marriage recognized as valid even though the trip was made specifically to accomplish that result. (Matter of Seymour, 113 Misc. 421; Matter of Burke, 143 Misc. 268.) Those decisions were made, however, under an earlier statute affecting the solemnization of marriages in this State. That statute was in force from 1902 to 1907, inclusive (former Domestic Relations Law, § 19, added by L. 1901, ch. 339, § 6, and repealed by L. 1907, ch. 742). Section 6 of the 1901 statute contained the following language: “ * * * § 19. No marriage claimed to have been contracted on or after the first day of January, nineteen hundred and two, within this state, otherwise than in this article provided, shall be valid for any purpose whatever, * * (Italics mine.) No similar provision appears in the present article 3 of the Domestic Relations Law. The words of section 11 of the Domestic Relations Law, as amended by the 1901 statute, and as presently constituted, *680must be compared. By the earlier statute it was provided, “ A marriage must be solemnized by either: * * * .” In the statute applicable here (supra), it is provided, •“ No marriage shall be valid unless solemnized by either: * * * .”
The earlier statute was held to be regulatory of the means of solemnization of marriages but not entirely to govern their validity. (Matter of Ziegler v. Cassidy’s Sons, 220 N. Y. 98.) Because of the difference in wording of the present statute it would seem to be reasonably clear that the Legislature intended to affect the validity of a marriage not solemnized as provided by the present statute. Literally construed, the phrase, “ no marriage shall be valid unless solemnized ” as described, has no territorial limits, and it could be applied to any nonceremonial marriage contracted outside the State. I do not believe, however, that the Legislature intended to go that far. New York could not define the forms of solemnization in foreign jurisdictions that must be followed to give validity to a marriage. But New York can define by statute what marriages it will recognize as valid, regardless of their validity elsewhere; and this is particularly so when concerned with its citizens. Such use of power presents no issue of full faith and credit, although the principle of comity may be applicable. Under that principle, however, this State may say whether or not it will recognize a marriage of its residents, valid in its place of inception, if it was not solemnized by one of the means prescribed as an element of validity. There would be a different question to consider if we were concerned with persons validly domiciled in a common-law jurisdiction at the time of entering into the contract.
On the matter of statutory construction, I should say that the intention of our present statute is to hold invalid a marriage between residents of our State which took place in a common-law jurisdiction by means of connubial conduct of the parties during brief sojourns there. I conclude that our public policy, as expressed in the statute and clarified by the history of the. statute, requires that result. The same result might be reached upon strictly legalistic reasoning. . Thus, in the legal concept, marriage in its narrowest form is a civil contract. (Domestic Relations Law, § 10.) The parties to this marriage were at all times residents of New York. If it must be found that they entered into a contract in a foreign jurisdiction, it could easily be found that the contract called for performance in New York State where performance is invalid. However, it is not necessary to rely upon such reasoning to reach a conclusion *681here. The judgment declares that the plaintiff-respondent was the wife and is now the widow of the deceased. It should be reversed on the law, with costs, and defendants-appellants ’ motion for judgment should be granted, as demanded in the answer, with costs.
The findings of fact, that the parties intermarried in valid common-law form and in common-law jurisdictions, should, in my opinion, be affirmed; but the conclusions of law, that the marriage is valid in New York State, should be disapproved for the reasons stated in this opinion.
If the conclusion that the marriage has no local validity is erroneous, the judgment in favor of the plaintiff-respondent should not be affirmed but a new trial should be granted because of the error committed in excluding the testimony of close relatives of the appellants. The Special Term held that a son of one of the appellants was interested in the event within the meaning of section 347 of the Civil Practice Act, and, therefore, could not testify to transactions or conversations had with the decedent. The same ruling was made when the defendants offered the wife of one of the appellants as a witness. Neither of those persons is named as a beneficiary in the will. They are not interested in the event within the meaning of section 347, and are not barred as witnesses, nor is their testimony incompetent on that ground.