(dissenting). In my view, the plaintiff husband, Joseph Blek, should have been granted an annulment of his marriage to defendant Alexandra in 1948, on the ground that at that time she was the undivorced wife of Morris Engelman. Alexandra’s claim that her conceded “ marriage ” to Engelman in 1933 was void because, when performed, he had a common-law wife, Georgia Hartwell, must fail. The record, as I read it, contains no probative evidence, of the sort required, that Engelman had entered into a common-law marriage with Georgia. That being so, he was free to marry Alexandra, and she, accordingly, was married when she became Mrs. Blek.
One of the prime requisites for establishing a common-law marriage is proof of the couple’s “ common reputation” as man and wife (see Matter of Wells, 301 N. Y. 796, affg. 276 App. Div. 822); their holding themselves out as such to a few people is not sufficient, particularly where there is compelling evidence to refute the existence of such asserted relationship. (See, e.g., Clayton v. Wardell, 4 N. Y. 230, 236; cf. Betsinger v. Chapman, 88 N. Y. 487, 499; Chamberlain v. Chamberlain, 71 N. Y. 423, 427; but cf. 7 Wigmore on Evidence [3d ed., 1940], § 2083, pp. 430-431.) “ Mere reputation,” as this court long ago said, “ is never conclusive, except when it is general, and supported by other circumstances.” (Clayton v. Wardell, supra, 4 N. Y. 230, 236.) “ Clear, consistent and convincing evidence is required to establish the fact. ’ ’ (Boyd v. Boyd, 252 N. Y. 422, 428.)
Such proof is here lacldng. There is not the slightest evidence that Engelman and Georgia were generally reputed, among their friends and relatives or in the community in which they lived, to be man and wife. The only evidence of a common-law marriage — apart from the testimony of Engelman which, even if believable, could not supply the essential proof of reputation in the community — is that they held themselves out as man and *31wife to the Coopersmiths who visited them at their home and who, it should be observed, witnessed Engelman’s marriage to Alexandra. The one other person who testified to the common-law relationship first met Engelman and Georgia in 1947, many years after the marriage of Engelman and Alexandra. That falls far short of proof that the parties were generally and commonly known to be married.
Not only is there no tangible evidence of a marriage between Engelman and Georgia, but the sole piece of documentary evidence bearing on the matter is to the contrary. Thus, when Engelman married Alexandra, defendant herein, he swore in his application for a marriage license that he was “ never previously married ”. Even the Coopersmiths, though they testified to the previous common-law marriage relationship between Engelman and Georgia, declared that, when they witnessed the EngelmanAlexandra nuptials, Engelman told them that he had been divorced. Thus, every bit of proof except Engelman’s present testimony — in which he necessarily acknowledges committing perjury when he applied for a license — indicates that, at the time of his marriage to Alexandra, Engelman was free to marry her. And the testimony of Mrs. Coopersmith that he lived in a common-law relationship with Georgia after his marriage to Alexandra — that they visited both Engelman and his bride Alexandra upon some occasions and Engelman and Georgia upon others, but not at “ two different addresses ” — is palpably unbelievable. In short, this is not a case involving a question of fact, of credibility, but one in which there is no evidence, as matter of law, to support the defense that Engelman and Georgia had entered into a common-law marriage.
Alexandra’s marriage to Engelman being valid, her marriage to plaintiff was necessarily void, and he is entitled to a judgment annulling his marriage to Alexandra.
I would reverse the judgment of the Appellate Division.
Lewis, Ch. J., Conway and Dye, JJ., concur with Froessel, J.; Fuld, J., dissents in opinion in which Desmond and Van Voorhis, JJ., concur.
Judgment affirmed.