52 N.Y.S. 72 | N.Y. App. Div. | 1898
The parties to this action were married on the 22d day of June, 1896, in the city of New York, living together as husband and wife at 35 Central avenue in the city of Brooklyn until the 13th day of March, 189Y, when the defendant left the home of the plaintiff owing to cruel treatment. The plaintiff was a widower with four children, and was conceded on the argument to be about sixty years of age at the time of the marriage, while the defendant was a widow with one child, and conceded to be slightly under forty years of age. At the time of the birth of her child the defendant underwent a surgical operation, by means of which her ovaries were removed. This fact was not disclosed to the plaintiff, although he admits that she did say to him that she had submitted to a serious surgical operation, and that she told him, before the marriage ceremony, that she did not know for certain whether she would be able to bear children or not. The learned trial court found as facts, among other things, that “ for the purpose of inducing the plaintiff to marry her, the defendant falsely and fraudulently represented to him that she was in fit physical condition to enter into the marriage state, and that relying upon said representations and believing them to be true, this plaintiff married said defendant; that said representations as to the physical condition of said defendant were false and untrue when she made same; that her ovaries had been cut out and removed a long time before said marriage; that defendant was then, for a long time prior had been, and has ever since remained, physically incapable of entering into the marriage state or of consummating said marriage; that in consequence of her ovaries having been removed it is impossible for the defendant to conceive, become a mother, or to enter into the marriage state,” and because of these facts the court concludes that as a matter of law the “ plaintiff is entitled to a decree annulling the marriage between the plaintiff and the defendant, freeing each of them from all obligation thereunder, and that said marriage is null and void, and of no force or effect.”
The decision of the learned court is based apparently upon the provisions of section 1Y43 of the Code of Civil Procedure, which provide that an action may be maintained to procure a judgment declaring a marriage contract void and annulling the marriage, when,
If the defendant was not incapable of entering the marriage state,
These operations are usually performed under the influence of an anaesthetic, and the extent of the operation is not, therefore, within the personal knowledge of the patient, nor is it customary, under all circumstances, to inform her. If the operation had resulted only in the removal of one of the ovaries, the power to conceive would not have been destroyed, and it is fair to assume that when the defendant told the plaintiff that she was not sure as to her capacity to bear children, she stated the exact truth to the best of her knowledge and belief". At least. there is no. evidence on which the contrary assumption may be based. It does not appear
“ Whenever fraud is relied on as the ground of invalidating a contract,” say the court in the case of Foss v. Foss (12 Allen [Mass.], 20), “ it is material not. only to prove false and fraudulent representations, but also that they were made under such circumstances as to lead to a reasonable inference that a party was thereby deceived and induced to enter into the contract which he seeks to avoid. If it appears that he had the means of ascertaining the falsity of the statements made to him, or that the nature of the transaction and the circumstances attending it were such as to put a reasonable person on inquiry, the presumption of deceit arising from proof of the fraud will be repelled and the party will be left to bear the consequences of his own want of due diligence and caution. A party cannot escape from obligations which he has voluntarily assumed, on the ground that he has been deceived and defrauded, if he neglects to avail himself of means of information within his reach, or if he places a blind or willful confidence in representations which were not calculated to deceive a man of ordinary prudence and circumspection, for although he may have been in point of fact deceived and imposed upon, yet it is a consequence or result of his own folly or neglect.”
It is undisputed, indeed the plaintiff himself alleges, that he was made aware of the fact that the defendant had undergone a serious surgical operation. He was given the name of the physician who performed the operation, and the defendant told him that she was in doubt as to her capacity to bear children, yet with all these facts before him the plaintiff entered into a contract of marriage with the defendant who, in so far as the evidence throws any light upon the subject, discharged all of the obligations which this contract imposed
“ Without examining fully into all the cases upon this subject,” say the court in Fisk v. Fisk (6 App. Div. 432), “ it may be sufficient to say that the rule is well settled that no fraud will avoid a marriage which does not go to the very essence of the contract, and which is not in its nature such a thing as either would prevent the party from entering into the marriage relation, or, having entered into it, would preclude performance of the duties which the law and custom imposes upon the husband or wife as a party to that contract. (1 Bish. Marr. & Div. §§ 183,184; Schouler on Husband & Wife, § 27; Reynolds v. Reynolds, 3 Allen, 605.) Within that' rule it has been held that fraudulent representations of one party as to birth, social position, fortune, good health and temperament do not vitiate the contract. * * * If, when the relation is entered into, the party is competent to make that contract, is mentally competent to do the duties which the contract involves, and physically able to meet its obligations, nothing more can be required, and however the other party may be disappointed as to physical or mental characteristics which he or she expected would exist, such disappointment is no ground for setting aside the contract, which the public good requires should be rendered indissoluble except for the gravest reasons.”
But assuming for the sake of the argument that this defendant had been guilty of fraud upon the plaintiff, we are still of the opinion that the judgment of the trial court ought not to be sustained. Section 1750 expressly provides that a marriage shall not be annulled on the ground of fraud if it appears that at any time before the commencement of the action “ the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.” The plaintiff does not deny that such cohabitation took place after the time that he alleges he discovered the alleged physical defects in this defendant, while the defendant states that such rela
All concurred, except Hatch, J., absent.
Judgment reversed, and new trial granted, costs to abide the event.