infected with any venereal disease, or if I have been so infected within five years I have had a laboratory test within that period which shows that I am now free from infection from any such disease." The said clerk shall also embody in the statement if either or both of the applicants have been previously married, a statement as to whether the former husband or husbands or the former wife or wives of the respective applicants are living or dead and as to whether either or both of said applicants are divorced persons, if so, when and where the divorce or divorces were granted and shall also embody therein a statement that no legal impediment exists as to the right of each of the applicants to enter into the marriage state, the town or city clerk is hereby given full power and authority to administer oaths and may require the applicants to produce witnesses to identify them or either of them and may also examine under oath or otherwise other witnesses as to any material inquiry pertaining to the issuing of the license; provided, however, that in cities of the first class the verified statements and affidavits may be made before any regular clerk of the city clerk's office designated for that purpose by the city clerk. If it appears from the affidavits and statements so taken, that the persons for whose marriage the license in question is demanded are legally competent to marry, the said clerk shall issue such license, except in the following cases. If it shall appear upon an application of the applicants as provided in this section. that the man is under twenty-one years of age, or that the woman is under the age of eighteen years, then the town or city clerk before he shall issue a license shall require the written consent to the marriage from both parents of the minor or minors or such as shall then be living, or if the parents of both are dead, then the written consent of the guardian or guardians of such minor or minors. If one of the parents has been missing and has not been seen or heard from for a period of one year preceding the time of the application for the license, although diligent inquiry has been. made to learn the whereabouts of such parent, the town or city clerk may issue a license to such minor upon the sworn statement and consent of the other parent. If the marriage of the parents of such minor has been dissolved by decree of divorce or annulment, the consent of the parent to whom the court which granted the decree has awarded the custody of such minor shall be sufficient. If there is no parent or guardian of the minor or minors living to their knowledge then the town or city clerk shall require the written consent to the marriage of the person under whose care or government the minor or minors may be before a license shall be issued. The parents, guardians or other persons whose consent it shall be necessary to obtain before the license shall issue, shall personally appear before the town or city clerk and execute the same if they are residents of the state of New York and physically able so to do. If they are nonresidents of the state the required consents may be executed and duly acknowledged without the state, but the consent with a certificate attached showing the authority of the officer to take acknowledgments must be duly filed with the town or city clerk before a license shall issue. Before issuing any license herein provided for, the town or city elerk shall be entitled to a fee of two dollars, which sum shall be paid by the applicants before or at the time the license is issued. Any town or city clerk who shall issue a license to marry any persons one or both of whom shall not be at the time of the marriage under such license legally competent to marry without first requiring the parties to such marriage to make such affidavits and statements or who shall not require the procuring of the consents provided for by this article, which shall show that the parties authorized by said license to be married are legally competent to marry, shall be guilty of a misdemeanor and on conviction thereof shall be fined in the sum of one hundred dollars for each and every offense. On or before the fifteenth day of each month, each town and city clerk shall transmit to the county clerk of the county in which such town or city is situated one dollar of the amount received for each fee collected, who, if the office of county clerk be salaried, shall pay the same to the treasurer of such county and otherwise may retain the same for his own use as a fee of his office. In any city the balance of all fees collected for the issuing of a marriage license, or for solemnizing a marriage, so far as collected for services rendered by any officer or employee of such city, shall be paid monthly into the city treasury and may by ordinance be credited to any fund therein designated, and said ordinance, when duly enacted, shall have the force of law in such city. (Amended by L. 1912, ch. 241; L. 1917, ch. 503, and L. 1921, ch. 317.) § 19. Records to be kept by town and city clerks. Each town and city clerk hereby empowered to issue marriage licenses shall keep a book in which he shall record and index all affidavits, statements, consents and licenses, together with the certificate attached showing the performance of the marriage ceremony, which book shall be kept and preserved as a part of the public records of his office. Whenever an application is made for a search of such records the city or town clerk may make such search and furnish a certificate of the result to the applicant upon the payment of a fee of fifty cents for a search of one year and a further fee of ten cents for each additional year, which fees shall be paid in advance of such search. All such affidavits, statements and consents, immediately upon the taking or receiving of the same by the town or city clerk, shall be recorded and indexed and shall be public records and open to public inspection. On or before the fifteenth day of each month the said town and city clerk shall file in the office of the county clerk of the county in which said town or city is situated the original of each affidavit, statement, consent, license and certificate, which have been filed or made before him during the preceding month. He shall not be required to file any of said documents with the county clerk until the license is returned with the certificate showing that the marriage to which they refer has been actually performed. (Amended by L. 1912, ch. 241; L. 1916, ch. 381; L. 1920, ch. 213, and L. 1921, ch. 32.) § 20. Records to be kept by the county clerk. The county clerk of each county except the counties included within the city of New York shall keep a copy and index in a book kept in his office for that purpose of each statement, affidavit, consent and license, together with a copy of the certificate thereto attached showing the performance of the marriage ceremony, filed in his office. During the first twenty days of the months of January, April, July and October of each year the county clerk shall transmit to the state department of health at Albany, New York, all original affidavits, statements, consents and licenses with certificates attached filed in his office during the three months preceding the date of such report, also all original contracts of marriage made and recorded in his office during such period entered into in accordance with subdivision four of section eleven of this chapter, which record and certificate shall be kept on file and properly indexed by the state department of health. Whenever it is claimed that a mistake has been made through inadvertence in any of the statements, affidavits or other papers required by this section to be filed with the state department of health, the state commissioner of health may file with the same, affidavits upon the part of the person claiming to be aggrieved by such mistake, showing the true facts and the reason for the mistake and may make a note upon such original paper, statement or affidavit showing that a mistake is claimed to have been made and the nature thereof. The services rendered by the county clerk in carrying out the provisions of this section shall be a part of the duties of his office. (Amended by L. 1915, ch. 422, L. 1917, ch. 245 and L. 1921, ch. 317.) § 24. Effect of marriage of parents of illegitimates. All illegitimate children whose parents have heretofore intermarried or who shall hereafter intermarry shall thereby become legitimatized and shall become legitimate for all purposes and entitled to all the rights and privileges of legitimate children; but an estate or interest vested or trust created before the marriage of the parents of such child shall not be divested or affected by reason of such child being legitimatized. Nothing in this article shall be deemed or construed to in any manner impair or affect the validity of any lawful marriage contract made before the passage of this article. § 25. License, when to be obtained. The provisions of this article pertaining to the granting of the licenses before a marriage can be lawfully celebrated apply to all persons who assume the marriage relation in accordance with subdivision four of section eleven of this chapter. Nothing in this article contained shall be construed to render void by reason of a failure to procure a mar riage license any marriage solemnized between persons of full age nor to render void any marriage between minors or with a minor under the legal age of consent where the consent of parent or guardian has been given and such marriage shall be for such cause voidable only as to minors or a minor upon complaint of such minors or minor or of the parent or guardian thereof. Penal Law. (L. 1909, ch. 88.) § 1450. Solemnizing unlawful marriages and unlawful solemnizing of marriages. A minister or magistrate who solemnize * a marriage when either of the parties is known to him to be under the age of legal consent, or to be an idiot or insane person, or a marriage to which within his knowledge a legal impediment exists, or any person not authorized by the laws of this state to perform marriage ceremonies who shall solemnize or presume to solemnize, with intent to deceive, any marriage between any parties is guilty of a misdemeanor. Until a marriage has been dissolved or annulled by a proper tribunal or court of competent jurisdiction, any person who shall assume to grant a divorce, in writing, purporting to divorce husband and wife and permitting them or either of them to lawfully marry again, shall be guilty of a misdemeanor punishable by fine for the first offense not exceeding five hundred dollars, and for the second offense one thousand dollars, or imprisonment not exceeding one year, or both such fine and imprisonment. (Amended by L. 1916, ch. 368.) § 1451. Unlawful procurement of marriage license. A person who, having a husband or wife living, takes out a license to marry another person, is guilty of a misdemeanor. The exceptions in section three hundred and forty-one of this chapter are applicable to this section. (Added by L. 1916, ch. 482.) III. ANNULMENT. Civil Practice Act. (L. 1920, ch. 925.) ARTICLE LXVII. Action to Annul a Marriage. Section 1132. Action for judgment declaring nullity of void marriage or annulling voidable marriage. 1133. Action where party under age of consent. 1134. Action to annul marriage when former husband or wife was living. 1135. Legitimacy of children. 1136. Action to annul marriage where party was an idiot. 1137. Action to annul marriage where party was a lunatic. 1138. Action to annul marriage by next friend of idiot or lunatic. 1139. Action to annul marriage on the ground of force, duress or fraud. So in original. Section 1140. Custody and maintenance of children. 1141. Action to annul a marriage on the ground of physical incapacity. 1142. Jury trial in action to annul marriage. 1143. Proof required for judgment by default in action to annul marriage. 1144. Motion to vacate order allowing next friend to maintain action. 1145. Dismissal of complaint in action by next friend to annul a marriage. 1146. Judgment annulling a marriage; how far conclusive. marriage. § 1132. Action for judgment declaring nullity of void marriage or annulling voidable marriage. An action may be maintained to procure a judgment declaring the nullity of a void marriage or annulling a voidable marriage heretofore or hereafter entered into or contracted. § 1133. Action where party under age of consent. An action to annul a marriage on the ground that one or both of the parties had not attained the age of legal consent may be maintained by the infant, or by either parent of the infant, or by the guardian of the infant's person; or the court may allow the action to be maintained by any person as the next friend of the infant. But a marriage shall not be annulled at the suit of a party who was of the age of legal consent when it was contracted, or by a party who for any time after he or she attained that age freely cohabited with the other party as husband or wife. § 1134. Action to annul marriage when former husband or wife was living. An action to annul a marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the life-time of the other, or by the former husband or wife. § 1135. Legitimacy of children. The following provisions govern the effect of declaring a marriage void or annulling a voidable. marriage upon the legitimacy of children of the marriage: 1. If a marriage be annulled on the grounds that one or both of the parties had not attained the age of legal consent, a child of the marriage is deemed the legitimate child of both parents. 2. If a marriage be annulled on the ground of the idiocy or lunacy of one of the persons entering into the marriage, a child of the marriage is deemed the legitimate child of the parent of sound mind, and the court by the judgment may decide that a child of the marriage is the legitimate child of the parent of unsound mind. 3. If a marriage be annulled on the ground of the idiocy or lunacy of both of the persons entering into the marriage, the court |