123 Misc. 552 | N.Y. Sup. Ct. | 1924
Plaintiff brings this action to annul his marriage to defendant upon the gound that he was induced to enter into the
Plaintiff was engaged in business as a private detective. He met the defendant when she applied to him for a position in his office in the spring of 1921. He testified that after she had been working for him in the office for ten or twelve weeks, and some time in June, 1921, he proposed marriage and that the next day she accepted; that during the time he had known her and prior to proposing marriage, she had made various statements to him concerning her home and family, to the effect that her parents resided at Phillips, Me., and that she had several brothers and sisters. On direct examination he testified that on one occasion she informed him that her oldest brother “ was the only one of her family that had been married.” Later on, on direct examination, he testified that the defendant told him that “ her brother was the only one of her family that had ever been married.” On cross-examination plaintiff was asked: “ Q. The other day you testified the statement your wife made was that her oldest brother was the only member of the family that was married. Is that what you testified to the other day? A. Words and substance. Q. Is that exactly what she said, that the oldest brother was the only member of the family that was married; is that what you testified to? A. Might be. Q. Today you say the oldest brother was the only member of the family that' had been married? A. That was the words and substance. Q. Which are the words,- the words you used the other day or the words you use today? A. I don’t know. Q. Then you don’t know as a matter of fact whether she said the oldest brother was the only member of her family that was married or that her oldest brother was the only member of her family that had been married; you have no definite recollection which way she made that statement? A. I haven’t, no, sir.” The record discloses no other statement made by the defendant to the plaintiff upon this subject. It is undisputed that defendant had previously been married; that within a short time after her former marriage she had given birth to a child; and that she had been divorced from her former husband. Plaintiff claims that he believed defendant’s said statements made before he proposed marriage; that he relied upon them and was induced thereby to propose marriage. Assuming these statements to have been made by the defendant, I do not think they should be regarded as sufficient to warrant the annulment of the marriage contract upon the ground of false statements and fraudulent representations. It does not appear that the statements were made at the time the plaintiff proposed marriage, or were made by the defendant for the purpose of inducing plaintiff
A much stronger case than the one at bar was the case of Glean v. Glean, 70 App. Div. 576, where the action was to annul a marriage because of the concealment by a husband from his wife of the fact
Defendant testified that when plaintiff proposed marriage, she informed him fully as to her previous marriage, maternity and divorce; that plaintiff not only had full knowledge of the facts but that on their wedding trip she stopped at the home where her child was living and told the plaintiff that she was going to see her child; that with knowledge of these facts plaintiff continued to live and cohabit with the defendant.
It further appears from the evidence, and is undisputed, that the parties entered into a separation agreement. Defendant claims that this constitutes a ratification on the part of the plaintiff of the marriage. Unquestionably this separation agreement would have this effect if the plaintiff then knew that his wife had previously been married and given birth to a child. Butler v. Butler, supra. The evidence upon all these questions is conflicting and disputed. The defendant is corroborated by two witnesses as to the fact that plaintiff knew the facts. It is incumbent upon the plaintiff to establish his cause of action by a fair preponderance of evidence. I do not think he has met this requirement. The marital status is too vital to the welfare of society to be disturbed except upon clear and convincing proof establishing the right thereto.
I accordingly find that plaintiff has failed to establish Ms cause of action; that he was not induced to propose marriage nor to marry the defendant in reliance upon the alleged false statements claimed to have been made by her. Further, that the plaintiff knew the facts prior to proposing marriage and was not induced by a contrary
Judgment accordingly.