109 Misc. 152 | N.Y. Sup. Ct. | 1919
The plaintiff seeks an annulment of her marriage. She bases her complaint solely upon the
Is there any proof of fraud in this? Did the defendant make any representation, that was material and of an existing fact? A marriage contract may be avoided like any other contract, and especially if it has not been consummated, when it was procured by fraud. But the fraud must consist of a false representation expressly or impliedly made, of an existing fact that is a material consideration to the wronged party. Here the plaintiff claims the promise of a Jewish ceremony was vital to her and she would not have consented to marry had the defendant not made it, but the defendant’s statement was merely a promise and not the assertion of an existing fact. He did not state that anything was, but only that something would be. He promised that at a future time there would be the other service. No legal fraud arises from such a promise. It is not a representation. It
The cases cited furnish no support. In Moore v. Moore, 94 Misc. Rep. 370, the marriage was annulled because the defendant at the time of entering into it had no intention of living with the plaintiff, and it was held that “ intention ” was an existing fact, following the decision in Adams v. Gillig, 199 N. Y. 314. But even this rather extreme case does not aid the plaintiff. Here there is no claim the defendant did not intend to live with the plaintiff as her husband. On the contrary the proof shows otherwise. In Dorgeloh v. Murtha, 92 Misc. Rep. 279, the plaintiff was under the age of consent, and there was the further finding that neither the plaintiff nor defendant intended to be married and were coerced into having the ceremony performed.
Counsel states that in April, 1919, Mr. Justice Benedict granted an annulment in Weinstein v. Weinstein on the identical grounds urged here. But, he adds, no opinion was written. Without knowing the reasons that prompted that decision, it cannot be accepted as an authority, as it seems to run- counter to the general rule.
The complaint must be dismissed and judgment go for the defendant.
Judgment for defendant.