204 A.D. 602 | N.Y. App. Div. | 1923
Lead Opinion
The action was brought by the husband for the annulment of the marriage theretofore solemnized between himself and the defendant on the ground of false representations. The facts as developed on the trial are as follows: Plaintiff’s first wife died March 1, 1919. A few days thereafter he became a patient of Dr. Hoyt, being treated for a narcotic habit. About the middle or latter part of April he became an inmate of the doctor’s house. The defendant was a trained nurse, employed by the doctor as such, and also as his housekeeper, and lived in the house with him. In May the plaintiff became engaged to the defendant and they were married on June 11, 1919. The plaintiff testified that shortly before they were engaged, the defendant stated to him that “ it was very tedious to her to work in there, and she also dwelt very strongly on the fact of living alone in this house with the doctor, that it looked very bad to the neighbors and to her friends. She says ‘ Particularly because it reflects upon my character as a woman,’ and she says, ‘ God knows that I am as pure as the day I was born, and this looks very bad, living alone here with the doctor.’ ” After they returned from their wedding journey, at the defendant’s request, they drove directly from the railroad station to the doctor’s house, and plaintiff witnessed demonstrations of affection between the doctor and defendant. When they reached their own residence, he remonstrated with the defendant and a quarrel ensued, during which the defendant informed the plaintiff that the doctor’s wife had obtained a divorce from him and that she was the corespondent in the action. This occurred between August fifteenth and twentieth, and the first or second morning thereafter the plaintiff returned the defendant to tüe doctor’s house and has not cohabited with her since. On August 29, 1919, the parties entered into an agreement wherein it was recited that the parties thereto are husband and wife, and unhappy differences have arisen and exist between the parties, and that the parties
Nearly a year after the agreement was entered into, on July 14, 1920, the plaintiff commenced this action. In the meantime and up to the time of the commencement of this action the plaintiff paid to the defendant the sums on his part agreed to be paid in the said agreement.
The issues raised by the pleadings were sent to the Trial Term for trial without the framing of the issues. At the end of the plaintiff’s case the defendant’s attorney moved for a dismissal of the complaint, and the trial justice granted the motion. The case was remitted to the Special Term, where the defendant proved the marriage and that there was no divorce; whereupon the learned justice made certain findings of fact and a conclusion of law “ that the defendant is entitled to a judgment dismissing the complaint of the plaintiff herein upon the ground that the plaintiff is estopped and barred from asserting bis right to an annulment, having entered into a separation agreement with the defendant subsequent to the time of the discovery of the facts alleged as ground for the annulment of his marriage to the defendant.”
The practice was irregular. The action was in equity, and the issues of fact were ordered to be tried at Trial Term. The justice
This court, nearly twenty-seven years ago, laid down the salutary rules which should govern actions of this character, saying: “ The right to bring such an action is now established by section 1743 of the Code of Civil Procedure [Dom. Eel. Law, § 7, subd. 4], but the jurisdiction of the court to annul a marriage upon the ground of fraud is not acquired by the provisions of any statute. It arises from the inherent jurisdiction of a court of chancery to set aside any contract when one of the parties was induced to enter into it by fraud upon him. (Ferlat v. Gojon, Hopkins’ Ch. 478.) But while the jurisdiction to annul a marriage is based upon the ordinary equity jurisdiction of the court, the fraud which will induce the court to set aside a contract of marriage is something different from the fraud which will induce the court to set aside an ordinary contract which has been executed, or even a contract which is still executory. The contract of marriage is something more than a mere civil agreement between the parties, the existence of which affects only themselves. It is the basis of the family, and its dissolution, as well as its formation, is matter of public policy in which the body of the community is deeply interested, and it is to be governed by other considerations than those which obtain with regard to any ordinary civil contract inter partes. For that reason the courts have been strict in laying down and in maintaining rules as to the annulment of this contract, and in requiring a somewhat higher degree of proof before permitting it to be set aside for fraud, than is requisite for the annulment of ordinary contracts, and in insisting also that the fraud which shall invalidate the contract must be something more than a mere misrepresentation as to collateral matters. Without examining fully into all the cases upon this subject, it may be sufficient to say that the rule is well settled that no fraud will avoid a marriage which does not go
Although it might appear that the opening sentence of the above quotation was in conflict, with the statement of Vann, J., in Stokes v. Stokes (198 N. Y. 301, 304) that “ an action to annul a marriage is purely statutory,” the latter statement means that the Legislature, declaring the public policy of the State, having specified certain cause for annulment and defined how the actions could be brought and the parties who could bring them, the court by reason of its inherent equity jurisdiction, cannot add to either the subject-matter or the parties. (Walter v. Walter, 217 N. Y. 439, 441.)
But where, as in the case under consideration, the subject-matter and the parties are within the limits of the statute and the subject-matter is one of former equitable cognizance, the principles governing the right to relief in chancery are to be applied and are determinative of the relief. For the purposes of this appeal, I will assume that the representation of chastity made by the wife before marriage was a material misrepresentation which would entitle the husband to maintain an action for annulment on the ground of fraud, although it is not authoritatively settled in this State, and there are authorities to the contrary in other States. These authorities are collated in Domschke v. Domschke (138 App. Div. 454), which was decided by a division of three to two.
In an action to annul a marriage a decree of nullity relates back
The judgment should be affirmed, with costs.
Dowling and Merrell, JJ., concur; Clarke, P. J., and Finch, J., dissent.
Dissenting Opinion
Passing all questions of practice, it clearly appears from the evidence that there was sufficient ground to warrant the court to enter a judgment annulling the marriage for the fraud of defendant in inducing the same, unless the separation agreement entered into after discovery of the fraud bars the action. I do not think it does. The marriage was not void, but voidable only, and was good until annulment by the court. By the separation agreement plaintiff provided for the performance of his marital obligations of support and maintenance. To hold this to be an affirmance of the validity of the marriage and a bar to the action for annulment, said marriage having been induced by gross fraud and deception consisting of affirmative and knowingly false statements in regard to a most material fact, namely, the pre-marriage chastity of the wife, when it appears, without dispute, that prior to this
In my opinion the judgment appealed from should be reversed and a new trial ordered.
Finch, J., concurs.
Judgment affirmed, with costs.