201 A.D. 338 | N.Y. App. Div. | 1922
This action is brought by the plaintiff to obtain a judgment declaring her marriage with the defendant null and void by reason of fraud alleged to have been practiced upon her by the defendant and as the result of which'fraud the plaintiff was induced to marry the defendant. In her complaint the plaintiff also asks the decree of the court that May O’Connell, the infant child of the parties, be declared the legitimate child of the plaintiff herein.
The fraud of which the plaintiff complains consisted in defendant’s representation to her, prior to the marriage of the parties, that he was not addicted to the use of drugs or narcotics, and upon the faith of which the plaintiff was induced to marry the defendant.
The parties were married on May 1, 1917, at the city of New York, and thereafter lived and cohabitated together as husband and wife for a little less than a year. One child, May O’Connell,
The facts as thus found by the court were fully sustained by the proofs presented upon the trial. Notwithstanding the facts as thus found, the learned trial court refused to grant the plaintiff judgment annulling her marriage with the defendant. We think the trial court erred in thus denying the plaintiff the relief which she sought, and to which we think she was entitled upon the proofs
The leading case with reference to the annulment of a marriage for fraud is that of Di Lorenzo v. Di Lorenzo (174 N. Y. 467). In that case Judge Gray, writing for a unanimous court, said (at p. 472): “ 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.”
In that case the representation of the defendant was as to a fact, except for the truth of which the necessary consent of the plaintiff would not have been obtained to the marriage. And at page 473 the court said: “ The plaintiff had a right to rely upon the defendant’s statement of a fact, the truth of which was known to her and unknown to him, and he was under no obligation to verify a statement, to the truth of which she had pledged herself. It was a gross fraud and, upon reason, as upon authority, I think it afforded a sufficient ground for a decree annulling the marriage contract. The jurisdiction of a court of equity to annul a marriage, for fraud in obtaining it, was early asserted in this State by the Court of Chancery, at a time when the limited powers of courts of law were inadequate for the purpose, This jurisdiction was expressly
And at page 474 Judge Gray says: “ Our attention has been called to cases in the courts of this State and of other States, which seem to hold a different doctrine upon the subject of the judicial annulment of a marriage contract. Whatever may be said in explanation, or in differentiation, I think it is sufficient that we rely upon the plain provision of our statute and upon the application to the case of a contract of marriage of those salutary and fundamental rules, which are applicable to contracts generally when determining their validity. If the plaintiff proves to the satisfaction of the court that, through misrepresentation of some fact, which was an essential element in the giving of his consent to the contract of marriage, and which was of such a nature as to deceive an ordinarily prudent person, he has been victimized, the court is empowered to annul the marriage.”
In Svenson v. Svenson (178 N. Y. 54) the Court of Appeals held that equity would annul a marriage upon the ground of fraud, where one of the parties at the time of its celebration was afflicted with a chronic, contagious and hereditary venereal disease, which fact was known to and concealed by him, and from which he had practically recovered at the time of the application for its annulment. In the case at bar there is more than mere concealment of the fact that the defendant was a drug, addict. The testimony presented to the trial court, and upon which the trial court found the fact to be, showed that for the purpose of inducing the plaintiff to marry the defendant, the defendant falsely and fraudulently represented to her that he was not addicted to the use of any drugs, narcotics or stimulants, and that the plaintiff relied upon and believed said statements of the defendant and, believing them to be true, contracted marriage with the said defendant. The evidence of the plaintiff is to the effect that, had she known that the defendant was addicted to the use of any drug or narcotic, she would not have married him. In Di Lorenzo v. Di Lorenzo (supra) the Court of Appeals said (at p. 472): “ 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
The Court of Appeals said further (at p. 471), after quoting from and stating the Code provisions with reference to the annulment of marriages: “ This language is broad and warrants but the one reasonable construction, that the fraud must be material, to that degree that, had it not been practiced, the party deceived would not have consented to the marriage.”
In Domschke v. Domschke (138 App. Div. 454) the Appellate Division, Second Department, held that a marriage, although consummated, will be annulled for fraud where the woman on inquiry of her intended husband stated that she had been the wife of a man then deceased, and that he was the father of her child, when in truth she had been his mistress and the child was a bastard, if the plaintiff did not cohabit with her after the discovery of the fraud, and this although such misrepresentation did not go to the essentialia of the marriage contract, as prior chastity is not a necessary qualification for marriage, but chastity, if insisted upon, may be made an essential qualification. It was further held in Domschke v. Domschke (supra) that such misrepresentation may be ground for an annulment of the marriage for fraud, because as matter of law, it may be material upon the question of consent, which is essential to the contract of marriage. After collecting authorities in support of the decision of the court in that ease, Mr. Justice Jenks sums up the whole matter thus: “ Nor can we give a better rule for deciding the question than this: 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.”
The plaintiff testified that she would not have entered into the marriage contract with the defendant had she known that he was addicted to the use of narcotics, and the court has found the fact to be that by reason of these representations the plaintiff was induced to marry him.
A recent decision in this court supports the contention of the appellant herein, and we think requires a reversal of the judgment appealed from and the granting to plaintiff of the decree which she seeks. In Harris v. Harris (201 App. Div. 880) the action was brought to obtain an annulment of the marriage upon the ground of fraud, it being claimed by the plaintiff that the defendant was an ex-convict and a man of bad character, and that she did not know such fact at the time of the marriage. The plaintiff testified that she
In the case at bar we think the proofs presented a much stronger case requiring the granting of the relief which the plaintiff seeks. Plaintiff was induced to enter into the contract of marriage with the defendant upon reliance upon his representations that he was a man of good habits and not addicted to the use of drugs or narcotics. The evidence shows beyond any question that these representations were false and untrue, and that, when made, the defendant was a physical wreck and a drug addict beyond the hope of reformation. The plaintiff testified and the court has found that such false and untruthful statements were made by the defendant to the plaintiff with intent to deceive and to defraud the plaintiff and to induce her to marry the defendant, and that, relying upon and believing said statements to be true, the plaintiff contracted said marriage. We see no reason why the court should not have granted the equitable relief which the plaintiff sought in this action and to which she was clearly entitled under the facts as found by the court. 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 and deceit.
The judgment dismissing the plaintiff’s complaint should be reversed, with costs, and a decree should be granted annulling the marriage of the parties and decreeing that the infant child of the parties, May O’Connell, is the legitimate child of the plaintiff herein, with costs to the plaintiff against the defendant.
Clarke, P. J., Smith, Page and Greenbaum, JJ., concur.
Judgment reversed, with costs, and decree of annulment ordered as directed in opinion, with costs. Present order for settlement.