39 N.Y.S. 537 | N.Y. App. Div. | 1896
The action was brought to annul a marriage which the plaintiff claims was procured by fraud, practiced upon him by the defendant. The marriage took place in 1861. The plaintiff was younger than the defendant. The fraud of which he complains is, that the defendant was a divorced woman at the time of the marriage,, whereas he supposed that she had never been married. He does not complain that any false representations were made to him on the subject, or that the divorce was not valid. In fact, he concedes that the divorce was a valid one, and that she was not married at the time she became his wife. The plaintiff says that the fact of his wife’s previous marriage and divorce' was not discovered by him until the year 1867, and that he at once ceased to cohabit with her, and that he never has cohabited with her since that time. As a matter of fact, it appears that soon after that time he went to-Europe, where he remained seven or eight years, and that upon hip, return to this country he continued to live separate from the defendant, and that they had not seen one another from the time the plaintiff went to Europe until the trial of this action. . The action was brought in 1894. The court dismissed the complaint and judgment was entered upon that decision.
The learned judge at Trial Term held that, conceding the story of the plaintiff to be true, the fact that the defendant married him without disclosing to him her previous marriage and divorce was not such a fraud as would warrant an annulment of the marriage.
There has been in this State a considerable increase in the number of actions to annul marriages upon the ground that they were procured by the fraud of one of the parties, and the reported cases show a considerable departure from the strict rules which have heretofore been laid down on the subject. The right to bring such an
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 to the very essence -of the contract, and which is not in its nature such a thing as either -would prevent the party from entering into the marriage relation, or,, having entered into it, would preclude performance of the duties which the law and custom imposes upon the husband or wife as a party ■to that contract. (1 Bishop on Marr. & Div. §§ 183, 184; Schouler on Husband & Wife, § 27; Reynolds v. Reynolds, 3 Allen, 605.) Within that rule it has been held that fraudulent representations of •one' party as to birth, social position, fortune, good health and ■temperament do not vitiate the contráct (1 Schouler on Husband & Wife, § 27); and so also, it seems to be a well-established rule that no misconception of one party as to the character or fortune
The case of Blank v. Blank (107 N. Y. 91) has no application here. It appears that the defendant in that case, who was the wife, represented herself to be a widow, whereas she had been divorced and her former husband was living, and the decree of divorce was not a valid one, so that, in fact, she was not competent to enter into the marriage contract.
. We are aware that there are some cases in this State which have gone beyond the rules above laid down and sought to annul a marriage for less cogent reasons. The case of King v. Brewer (8 Misc. Rep. 587) may be cited as an illustration. In that case it
The judgment must be affirmed, with costs.
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.