104 Misc. 561 | N.Y. Sup. Ct. | 1918
The canonist in the ecclesiastical courts was averse to a decree of annulment of marriage upon any grounds of fraud or “ error,” as it ivas known in the courts spiritual, excepting it was of such nature as reached the essence of the consent of the parties. This was denominated “ error substantialis.” Such incidental mistake or fraud in the inception of the marriage relation, whether occurring through representation or suppression of facts, was called “ error accidentalis ” or immaterial .fraud, not striking at the capacity of the party to make the contract nor his ability to perform its duties, nor involving the essence of the consent of the espoused. The common law of marriage and the chancery rules, apart from statute respecting its annulment, have not modified this doctrine to any great extent, but in practice and modern acceptance of grounds for annulment the matters involving the essence of the consent to the marital pact have been widened in construction to include suppressions, evasions, representations of previous condition of health, status, and even of wealth to an extent which ivas unknown to any system of jurisprudence based on Roman law, whence most of the rules of civil marriage are derived. The rule now" seems to be that if the fraud be such that had it not been practiced the contract would not have been made, or the transaction of marriage completed, then it is material (error substantialis); but if it be shown or made probable that the same thing would have been done by the same parties in the same way if the fraud had not been practiced, it cannot be deemed material (error accidentalis). Canham v. Barry, 15 C. B. 597. If one would go so far as. to say that a woman would or would not be led to give or withhold her consent to a marriage on the single consideration that the man ivas or Avas not married to another woman, and such
Ordered accordingly.