(dissenting). It is fundamental that every State has the right to determine the marital status of its own citizens (Maynard v. Hill, 125 U. S. 190; Hunt v. Hunt, 131 U. S., Appendix, clxv; Kinnier v. Kinnier, 45 N. Y. 535, 544; Wade v. Kalbfleisch, 58 N. Y. 282; Cunningham v. Cunningham, 206 N. Y. 341, 347; Bell v. Little, 204 App. Div. 235, 237, affd. 237 N. Y. 519). Exercising that right, New York has declared in section 5 of the Domestic Relations Law that a marriage between uncle and niece is incestuous, void and criminal. Such marriages, while not within the Levitical forbidden degrees of the Old Testament, have been condemned by public opinion for centuries (see 1 Bishop on Marriage, Divorce and Separation, § 738), and are void, by statute in (it would seem) forty-seven of the States of *494the Union (all except Georgia, see Martindale-Hubbel, Law Digests, and except, also, that Bhode Island, one of the forty-seven, exempts from its local statute ‘ ‘ any marriage which shall be solemnized among the Jews, within the degrees of affinity or consanguinity allowed by their religion ’ ’, Gen. L. of B. I., ch. 415, § 4). It is undisputed here that this uncle and niece were both domiciled in New York in 1913, when they left New York for the sole purpose of going to Bhode Island to be married there, and that they were married in that State conformably to its laws (see above) and immediately returned to New York and ever afterwards resided in this State. That Bhode Island marriage, between two New York residents, was, in New York, absolutely void for any and all purposes, by positive New York law which declares a strong public policy of this State (see Penal Law, § mo).
The general rule that “ a marriage valid where solemnized is valid everywhere ” (see Restatement, Conflict of Laws, § 121) does not apply. To that rule there is a proviso or exception, recognized, it would seem, by all the States, as follows: “ unless contrary to the prohibitions of natural law or the express prohibitions of a statute ” (see Thorp v. Thorp, 90 N. Y. 602, 605). Section 132 of the Bestatement of Conflict of Laws states the rule apparently followed throughout America: “ A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases: * * # (b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil ” (see 35 Am. Jur., Marriage, § 180; 55 C. J. S., Marriage, § 16; Grosman, New York Law of Domestic Relations, § 34). The old and famous New York case of Wightman v. Wightman (4 Johns. Ch. 343, 349, 350), decided in 1820 when there were no marriage statutes in our State, says that marriages may be declared by ‘ ‘ appropriate legislation ’ ’, to be incestuous. New York, as a sovereign State with absolute powers over the marital status of its citizens, has enacted such legislation, but we, by this decision, are denying it efficacy.
Van Voorhis v. Brintnall (86 N. Y. 18) does not save this marriage. That case dealt not with a marriage void under sec*495tian 5 of the. Domestic Relations Law, but one forbidden by section 8 thereof. Section 8 forbids the guilty party, in a New York divorce judgment, to marry again within a certain time, and the Van Voorhis ruling was that, by section 8, the Legislature did not intend to make such marriages contracted outside this State absolutely void, but merely stated an in personam prohibition against the adjudged adulterer marrying, for a period of time (see analysis of Van Voorhis v. Brintnall in Mitchell v. Mitchell, 63 Misc. 580, 586). This court’s opinion in the Van Voorhis case, while stating the general rule that the validity of a marriage depends on the law' of the place of marriage, noted that there are exceptions thereto in cases of incest, within the prohibition of natural law, and “ prohibition by positive law ” (86 N. Y., at p. 26). Section 5 of the Domestic Relations Law, the one we are concerned with here, lists the marriages which are “ incestuous and void ” in New York, as being those between parent and child, brother and sister, uncle and niece, and aunt and nephew. All such misalliances are incestuous, and all, equally, are void. The policy, language, meaning and validity of the statute are beyond dispute. It should be enforced by the courts.
The order should be reversed and the proceeding remitted to the Surrogate for appropriate proceedings, with costs to abide the event.
Conway, Dyé, Fuld and Fboessel, JJ., concur with Lewis, Ch. J.; Desmond, J., dissents in opinion; Van Voobhis, J., taking-no part.
Decree affirmed.