Swartout v. Willingham. such evidence, and the jury might properly have rendered the verdict which they did, then the court has no discretion to grant a new trial, because when the jury have passed upon the case and rendered a verdict which is supported by the evidence, they have done that which the law authorizes them to do. A new trial cannot be granted where the evidence is conflicting on material points, and where that is the case the court has no discretion, but is bound to deny it, even though the conclusion reached by the jury may be one which the court itself would not have reached upon the same testimony (Beckwith v. N. Y. Central R. R. Co. 64 Barb. 299). The plaintiff further asks that the motion for a new trial may be granted because insufficient time was given him to sum up the case to the jury. The court allowed twenty minutes to each side to present the case, which was clearly within its discretionary power. No complaint was made by either of the counsel to the limitation thus established, and it was not suggested at the trial by the counsel for the plaintiff that he desired more time to present his case to the jury. Indeed, he does not claim now that he required more time to present the matters as to which the evidence was conflicting, but he says that he did not have sufficient time to explain to the jury that the evidence of the plaintiff upon a matter which was not contradicted, should have been accepted and believed by the jury. To this claim of the plaintiff that a new trial should be granted on this ground, there are several answers. In the first place, the motion for a new trial on the judge's minutes cannot be made upon any such ground. The right to make such a motion is one which arises entirely from the statutory provision, and it can be made only upon those grounds upon which the statute permits it to be made (Delaney v. Brett, 51 N. Y. 78, 81). It is quite true that the Superior Court of Buffalo has said in the case of Campanello v. N. Y. Central, etc., R. R. Swartout 7. Willingham. Co. (15 N. Y. Supp. 670), that the court might entertain a motion upon the minutes to set aside a verdict for other causes than those mentioned in the Code of Civil Procedure, but that remark was not necessary to the decision of the court in that case, and was not sustained by the case which was cited as authority for it, and manifestly is not correct. The remedy of the plaintiff in this case, where he claims that injustice has been done to him by summarily cutting short his summing up, would be to move upon affidavits showing the fact that he had suffered an injustice from the ruling of the court and asking for a new trial. But he could not do that, unless upon the trial, when his time to sum up had been limited, he had called attention to the fact that he required more time to sum up his case, and asked for it and been refused. Nothing of the kind was done in this case. There was no request for further time, and there is nothing to show that any injustice was suffered because more time was not allowed. The plaintiff complains, too, that the jury was prejudiced against the riders of bicycles. It is sufficient to say upon this point, that there is not one particle of evidence to establish any such thing. These are all the considerations presented upon the motion for a new trial upon the minutes, and none of them is sufficient to warrant the court in granting such relief. But a motion is also made for a new trial on the ground of newly discovered evidence. The plaintiff upon that motion presents two affidavits: one by Jonathan G. Meyer, and another by John H. Jeffries. As to Mr. Jeffries' affidavit, it is sufficient to say that he does not pretend to have seen the collision between the parties, nor does he pretend to state what the plaintiff was doing when the accident occurred, or immediately before that time. The only material fact which he states, which was contradicted upon the trial, is that Mr. Taylor, who was going at the rate of seven miles an hour in his judgment, was gaining Swartout v. Willingham. upon the plaintiff. It may be inferred from this statement that in the affiant's judgment, the plaintiff was travelling at less than seven miles an hour. But that of itself, was not a very important matter in the case, and it is not sufficient to warrant a new trial. The other affidavit is that of Jonathan G. Meyer, who testifies in the moving papers that he saw the defendant approaching the plaintiff and driving a covered delivery wagon. That he heard a crash and saw the plaintiff fall from his bicycle, and saw the defendant pull back his horse after the plaintiff fell, and that the plaintiff was within three or four feet from the curb on the north side of East Avenue, when he fell. The same man says in the opposing affidavits that he did not see the defendant approaching the plaintiff, and he is not able to state whether the defendant was driving his horse rapidly or slowly. That the defendant did not attract his attention until after the accident, and that the first he saw was, after the crash, seeing the plaintiff falling from his bicycle. He says, too, in the opposing affidavit that at the time of the crash, the defendant's wagon was at least eight feet from the curb. If we take the story of this affiant to be gained from the three affidavits which he has made, it is exceedingly uncertain what he saw or what he would swear to. It is quite clear, however, that his testimony would not be sufficient to change materially the condition of affairs as it was made to appear upon the trial, and certainly the court cannot say that it is even probable that such testimony would bring about a different result. For that reason the motion for a new trial upon the ground of newly discovered evidence is denied. Safford v. Safford. SAFFORD v. SAFFORD. N. Y. Superior Court, Special Term; October, 1893. Parent and child; custody of child. Although after the first spouse is discovered to be living, continued cohabitation under a second marriage contracted under 2 R. S. 139, § 6; 8th ed. Id. Vol. IV., p. 2596,—providing that a second marriage contracted in good faith, where the former husband or wife has absented himself or herself for five successive years without being known to the other party to be living, shall be void only from the time its nullity shall be decreed,-may furnish to the first spouse no ground for divorce, until the second marriage is annulled; yet such cohabitation is improper upon moral grounds, and where it has been indulged in, neither party upon the annullment of the second marriage can be regarded as the "innocent party," entitled to the custody of the children under Code Civ. Pro. § 1745, but in such a case the court may award their custody to either parent as the interest of the children requires. Trial by court without a jury. Action by husband to annul a marriage upon the ground that defendant had intermarried with plaintiff while her husband by a former marriage was still living. A. P. Cumming, for plaintiff. Kahn, Ruck & Lippmann, for defendant. MCADAM, J.-A marriage, invalid to all intents and purposes, no matter in what proceeding or in what court the question arises, is a void marriage (14 Am. & Eng. Encl. of L. 483). Thus, if a man being already married marries another woman, his marriage is invalid to all intents and purposes without any judgment declaring it void, for a man cannot have at the same time two wives, or a woman two husbands (Ib. 499, Amory v. Amory, 6 Robt. 514; Safford v. Safford. S. C., 33 How. Pr. 490; Spicer v. Spicer, 16 Abb. Pr. N. S. 112; Cropsey v. Cropsey, 11 N. Y. 228; Haviland v. Halsey, 34 Id. 643; People v. Baker, 76 Id. 78; In re Hetherington, 25 Weekly Dig. 4). This is modified by the statute making certain marriages voidable only. It pro vides in substance, that a second marriage, contracted in good faith, where the former husband or wife has absented. himself or herself for the space of five successive years, without being known to the other party to be living during that period, shall be voidable merely, and shall only be considered void from the time its nullity shall be decreed by a court of competent authority (2 Birdseye's R. S. 1401, § 6; Penal Code, § 299; Code of Civ. Pro. § 1745). This provision was to protect the party from penal consequences (Williamson v. Parisien, 1 Johns. Ch. 389), and to save the legitimacy of the children (Spicer v. Spicer, supra). The defendant herein intermarried with the plaintiff, while the husband of a former marriage was living, but she acted in good faith (114 N. Y. p. 109), and under the mistaken belief that he was dead. She had not seen or heard of him for more than five years prior to her marriage with the plaintiff, and did not know that he was living. It now appears that the first husband is alive, and the defendant in consequence loses all property rights under her marriage with the plaintiff, such as dower (Price v. Price, 124 N. Y. 589), and the second marriage must be annulled. One child was born of the marriage, a son, now two years old. What is to be done with this child? Both parents claim the custody. The statute declares that the child shall be deemed legitimate and that the innocent party must be awarded the custody of it (Code Civ. Pro. § 1745). The innocent party is generally regarded as the parent who is compelled to resort to legal proceedings for annullment, but in this instance the plaintiff voluntarily cohabited with the defendant after suit brought, and the |