122 Misc. 837 | N.Y. Sup. Ct. | 1924
Motion for judgment dismissing the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Plaintiff sues his wife for an annulment of the marriage. The parties were married in 1906. There are two children, now aged fifteen and six. An analysis of a rather verbose complaint indicates the cause of action the plaintiff seeks to state
This limited rule came to an end and seemed to be broadened to an extent to which many never thought it would be, by the decision of the Court of Appeals in Di Lorenzo v. Di Lorenzo, 174 N. Y. 467. There defendant represented to plaintiff that she had given birth to a child by him. He, believing these representations, and to legitimatize the child, was induced to marry the defendant, which he would not otherwise have done. The defendant’s representations were false. She had not given birth to any child, but had produced the child of another to the plaintiff for the purpose of inducing him to marry her. After the marriage the parties lived together for about eight years. Thereafter the plaintiff discovered the fraud. There was no issue of the marriage. The Court of Appeals held the plaintiff was entitled to an annulment of the marriage and laid down this general rule, which has since been frequently cited: “ While, then, it is true that marriage contracts are based upon considerations peculiar to themselves and that public policy is concerned with the regulation of the family relation, nevertheless, our law considers marriage in no other light than as a civil contract. (Kujek v. Goldman, 150 N. Y. 176.) The free and full consent, which is of the essence of all ordinary contracts, is expressly made by the statute necessary to the validity of the marriage contract. The minds of the parties must meet in one intention. It is a general rule that every misrepresentation of a material fact, made with the intention to induce another to enter into an agreement and without which he would not have done so, justifies the court in vacating the agreement. It is obvious that no one would obligate himself by a contract, if he knew that a material representation, entering into the reason for his consent, was untrue. There is no valid reason for excepting the marriage contract from the general rule.”
While some marriages may have been contracted without considerations of love and affection, it may be a decidedly material consideration upon which the parties enter into the bonds of wedlock. So here this plaintiff, as an ordinarily prudent person, may have deemed it a material factor and might not have entered into the relationship if he knew that his wife did not love him., He might not have been willing to have chanced his future happiness upon the possibility of developing what he deemed essential from the outset. Following the rule in the Di Lorenzo case, in my opinion, a misrepresentation such as the one here alleged may be a misrepresentation as to a material fact. In Domschke v. Domschke, 138 App. Div. 454, by quotation from Parsons on Contracts, the rule is tersely stated as follows: “ ‘ if the fraud be such that, had it not been practiced, the contract would not have been made, or the transaction completed, then it is material to it; but if it be shown or made probable that the same thing would have been done by the parties, in the same way, if the fraud had not been practiced, it cannot be deemed material.’ ”
As bearing upon the materiality of love in connection with the marital relationship, the following is taken from the concurring opinion of Thomas, J., in the case last cited, where he speaks of the “ destruction of the sacred love and respect that justify marriage.” Assuming that the complaint contains a,negations upon which mav be predicated a claim of fraudulent representations which induced the marriage, there is, however, in mv opinion, an insurmountable objection to the granting of the relief here sought. The parties have been married seventeen years. There are two children. Property rights are involved. In the Di Lorenzo case the Court of Appeals made no reference in this connection to the effect of consummation, birth of children and property rights. Less than a year after the decision in the Di Lorenzo case, the Court of Appeals decided the case of Svenson v. Svenson, 178 N. Y. 54. There, the defendant, at the time of the marriage, was afflicted with a chronic venereal disease, known to and concealed by him. It was held that plaintiff was entitled to an annulment of the marriage. After the marriage defendant advised plaintiff of his condition. Plaintiff and defendant never cohabited. The marriage was never consummated. The following is stated by the court, quoting from
‘ Where there has been no consummation, any fraud which would be sufficient to annul a contract should in reason be sufficient to annul a marriage ceremony. No satisfactory reason of the law will justify the courts in declaring valid such a contract of marriage when tainted with fraud or duress, where the only effect will be the punishment of the innocent and the confiscation of his or her property by the deception. If the marriage is declared valid it will exist in name only, preventing both parties from marrying again and bringing the marriage relation into disrepute. Every reason for relief from fraud is applicable here, where a denial of relief is fraught with evil consequences much greater than those flowing from ordinary contracts.’ ” And from 1 Bishop on Marriage and Divorce (5th ed. p. 142, § 166 et seq.): “ ‘ Whatever of fraud, of error, or duress will vitiate any other contract, should ordinarily be received as sufficient to vitiate the mere marriage contract, whether executory or executed, viewed as a thing separate from the consummation which follows.’ ” The court also refers to what is stated in Di Lorenzo v. Di Lorenzo (71 App. Div. 509, 519): “ ‘ When, however, the fraud is discovered before the marriage is consummated, and the innocent party refuses to cohabit, the marriage is so inchoate and incomplete that the status of the parties is similar to that of parties to an executory contract, and may be annulled without violating any considerations of public policy.’ ”
The court, in the Svenson case, also quotes from the Di Lorenzo case in the Court of Appeals, but only on the question of fraud. It is interesting to note that the court made no observation in the Svenson case upon the fact that in the Di Lorenzo case the parties had lived together for eight years after the marriage, and yet makes reference to the statement in the opinion in the Di Lorenzo case in the Appellate Division limiting bhe fraud to cases where there has been no consummation. No case in the Court of Appeals touching upon this phase of the subject since the Di Lorenzo case has been submitted, nor has any such been found.. In Domschke v. Domschke, supra, the defendant had represented to plaintiff that she had been
This was written six years after the opinion in the Svenson case. In Watkins v. Watkins, 197 App. Div. 489, where the marriage was annulled, upon the ground that the consent of plaintiff was obtained upon condition that after the civil ceremony there should be a ceremony according to Jewish rites, when the defendant refused to have the religious ceremony performed the parties separated without consummating the marriage by cohabitation, the following appears: “ Where the marriage has not been consummated, it has been held that it ‘ is so inchoate and incomplete that the status of the parties is similar to that of parties to an executory contract, and may be annulled without violating any considerations of public policy.’ (Di Lorenzo v. Di Lorenzo, supra, 71 App. Div. 509, 519, cited with approval in Svenson v. Svenson, supra.) ”
In this case the court makes reference to the Di Lorenzo case in the Court of Appeals, but only upon the question of fraud. In O’Connell v. O’Connell, 201 App. Div. 338, the defendant had represented that he was of good personal habits and did not use drugs; that plaintiff, relying upon that, married him. As a matter of fact, he was not of good habits and was an addict of narcotics. It was held that the plaintiff was entitled to an annulment. The parties lived and cohabited together as husband and wife for a little less than a year. One child was born and at the time of the trial was two years of age. The court does not consider the ques- • tion of effect of consummation, but it is stated as a basis for the court’s action in granting annulment, “ It would be a cruel injustice to compel the plaintiff to go through life bound by ties of marriage to a dope fiend past all hope of redemption, where it so clearly appears that she was induced to contract such alliance by fraud
Ordered accordingly.