29 N.Y.S. 1114 | The Superior Court of the City of New York and Buffalo | 1894
The question here presented is a delicate and unusual one. The action is brought to annul a marriage contract, under section 1743, subd. 4, of the Code, on the ground that the consent of plaintiff was obtained by fraud. The state of facts upon which the charge of fraud is based is as follows: The parties were married on the 12th of April, 1893. The defendant, at that time, seems, to have enjoyed a good reputation in society, as a young man who attended church, and acted the part of a law-abiding citizen, of good moral character. The plaintiff had known him for some years, and, for two years previous to the marriage, quite intimately. She believed him to be a man worthy of her affection. The plaintiff herself was at the time of the marriage about 20 years of age, and was a young lady, apparently, of religious instincts and refined nature, and enjoyed the respect and esteem of the society in which she moved. Her brother, who seems to have stood in the place of guardian to her, as her father was dead, made investigations prior to the marriage concerning the character and antecedents of defendant, and was satisfied that there was nothing against his character. Her pastor also seems to have had a good opinion of defendant, and, from all her friends who knew defendant, she apparently heard nothing that would tend to cause her any doubt of defendant’s good moral character. With this opinion of defendant, she' consented to marry him. It seems, however, that, for some time previous to his marriage, defendant kept a pool room, unknown to plaintiff. Ostensibly, he carried on business as a stationer, and was apparently engaged in earning an honest livelihood; but he also, at the same time, ran a pool room, which is an offense punishable by imprisonment for one year, or by a fine of not over $2,000, or both. See Pen. Code, § 351. The plaintiff and defendant lived together as man and wife from the date of their marriage, i. e. April 12, 1893, until about August 1, 1893, when defendant was arrested on a charge of obtaining money under false pretenses, and was placed in Ludlow Street Jail, where he remained about a month, and was then released. The testimony is very meager on this point, and I do not know whether he was let out on bail, or whether the matter was adjusted in some way. The plaintiff was made aware of his offense, but seems to have, in a measure, condoned it, for she visited him in prison, and seems to have acted like a model wife under trying circumstances. Her explanation of this is as follows: “I thought it was his first offense. I thought that if he came out he would do what was right. * * * He promised me he would.” She also swears that, after her marriage, defendant admitted to her that he had kept a pool room during some months previous to their mar
The question here to be determined is, do the above circumstances constitute a fraud on plaintiff by defendant, in procuring her consent to the marriage, within the meaning of section 1743, subd. 4, of the Code? Plaintiff, at the time of the marriage, believed defendant to be a good man, whereas, in point of fact, he had kept a pool room, and to that extent was a man of criminal propensities.. These propensities were further developed after the marriage, but they existed at the time of the marriage, although they were not discovered by plaintiff until after the marriage. Would plaintiff have-consented to marry the defendant had she known that -he was, or had been, engaged in a criminal occupation, and was a man of criminal propensities? Presumably not, although, as I have said, it is difficult to determine from the evidence whether or not she condoned his deception in concealing from her the fact that he had kept a pool room previous to his marriage. Certainly, it would seem to have been a deception on the part of defendant to keep the plaintiff in ignorance of his pool room until after the marriage. Plaintiff did not rush blindly into the marriage, but had excellent reasons-for supposing defendant to be a worthy person. Subsequent to the-marriage she discovered that she had been deceived in defendant’s-character, and that at or shortly before the time of his marriage he had been engaged in a criminal occupation. Since the marriage-the bad character of defendant has become of common repute, through newspaper notoriety. It certainly seems a very hard fate-for a young woman, scarcely out of her teens, to find herself bound to a man of criminal instincts, whom at the time of the marriage-she had supposed to be, and had good reason to believe was, an honest and worthy man. But if, after full knowledge of the facts constituting the fraud or deception, she voluntarily continued to cohabit with defendant, she cannot maintain an action for the annulment of the marriage. Code, § 1750. The testimony on this point is not very satisfactory. She learned, after the marriage, that he-had kept a pool room previous to the marriage; but whether or not she left him immediately after such fact had come to her knowledge, or not, does not-appear. When he was arrested for obtaining money on false pretenses, she visited him in prison, and sympathized with him, because she thought it was “his first offense,” and that he