At the close of the trial the learned trial justice stated orally that he had no doubt the defendant was in a diseased condition at the date of the marriage, and he also stated that defendant’s knowledge of his condition was established by the evidence. But he was of opinion that defendant was under no legal duty to disclose his condition and said that under the circumstances fraud could only be found upon evidence of a deliberate misstatement of the facts. He decided that there was no representation by defendant that he was free from disease, that there was no actual fraud shown, and he, therefore, dismissed the complaint upon the merits. When the learned judge subsequently passed upon the findings of fact and conclusions of law he found that defendant was suffering with the disease at the date of the marriage but that plaintiff did not discover the fact for several years thereafter — that she had not cohabited with defendant after her discovery of the facts, and he also found that she would not have married defendant had she known of his condition. But in making his formal findings of fact he refused to find that defendant knew of the existence of the disease at the date of the marriage, although he apparently had no doubt about this fact at the close of the trial. He says in a memorandum handed down with the findings: “No proof to sustain such a finding can be found in the record. An inference might be drawn that he knew of the malady because of the fact that he went to a doctor soon after the marriage, but inferences are not sufficient always to establish facts.”
The provision of the Civil Practice Act (§ 1139) is that a marriage shall not be annulled on the ground of fraud if it appears that at any time before the commencement of the action the parties voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud. The findings of fact take plaintiff out of the prohibition in the statute and there is no other statutory limitation as to the time of commencing an action to annul a marriage for fraud. An action to annul a marriage for “ physical incapacity ” must be commenced before five years have expired since the marriage (Civ. Prac. Act, § 1141), but “ physical incapacity ” is not the cause of action pleaded.
I dissent from the conclusion of the learned trial justice that there was no obligation upon the defendant to disclose his diseased condition to plaintiff if known to him before he married her and
The judgment should be modified by striking therefrom the words “ on the merits ” and substituting therefor the words “ without prejudice,” and as so modified the judgment should be affirmed, without costs. This court amends the fourth finding of fact as made by the trial justice by striking therefrom the words “ of any character ” and inserting before the word “ representations ” the word “ actual.” Also by inserting the word “ actual ” before the word “ representation ” in the fifth finding of fact.
Present — Kelly, P. J., Rich, Manning, Kelby and Kapper, JJ.
Judgment modified in accordance with opinion, and as so modified unanimously affirmed, without costs. Settle order on notice.