8 Misc. 2d 811 | N.Y. Sup. Ct. | 1957
The action is to annul the marriage upon the grounds of fraud in the defendant’s misrepresentation that he was a man of good personal habits and particularly that he was not addicted to the use of stimulants. Such an
(supra) was a case in which annulment was decreed by a closely divided Court of Appeals which reversed the lower courts. The plaintiff’s claim was that the defendant had deceived him in regard to promises of financial aid. The marriage was not consummated. The marriage in di Lorenzo v. di Lorenzo (174 N. Y. 467) was dissolved on the plaintiff’s proof that the wife who had engaged in premarital intercourse falsely represented to the man who married her that she had become pregnant and borne his child while he was away from the State. False representation regarding the use of narcotics (O’Connell v. O’Connell, 201 App. Div. 338) likewise goes to a fact so weighty and material that the courts can say that they would have influenced the consent of a man of average intelligence and prudence (see Beard v. Beard, 238 N. Y. 599; Minner v. Minner, 238 N. Y. 529; Svenson v. Svenson, 178 N. Y. 54). On the other hand Jones v. Jones (189 Misc. 145) rejects as not sufficiently material a claimed misrepresentation that the defendant did not drink hard liquor, coupled with condonation by continued cohabitation. So does Trefry v. Trefry (189 Misc. 1013) where the defendant concealed two convictions for intoxication, five and seven years before the marriage.
Counsel suggests that it would be cruel and inhuman to compel the plaintiff to go through life bound by ties of marriage to an alcoholic, where it so clearly appears she was induced to contract such alliance by fraud and deceit. Compulsion there was none. The marriage was her own. While I am not satisfied that there was any misrepresentation, certainly none so material as to upset the contract for lack of consent, I prefer to rest decision denying judgment to the plaintiff for lack of proof that there was no condonation by refraining from voluntary cohabitation. Voluntary cohabitation after discovery there was, and accompanied by coitus is must be inferred. It would be a fraud on a court of equity to let it be accepted that this mature and apparently intelligent plaintiff suffered the strange and close relationship with this addict for so long a period after discovery without disclosure or notoriety. Reverting to' the asserted concealment, it seems hard to believe that in the small community in up-State New York where the troth was made and where plaintiff said the defendant was apparently known and respected that she could not and did not learn of his aberration.
Judgment will be entered for the defendant on the transcribed testimony of trial to be filed therewith.