
    Anonymous.
    (Supreme Court, New York County,
    November, 1897.)
    Annulment. of marriage — Fraud — Representation by husband of good health, when, in fact, diseased. '
    Proof made in an action, brought by a mother, to annul, for fraud, the marriage of her minor daughter, that, during the engagement and beforq the marriage ceremony, the defendant had stated to the daughter that he was in good health, that, in reliance upon the statement, she entered into the marriage relation, that he then was affected with a local, chronic and contagious venereal disease which she contracted from - him, and from which she suffered severely, and still was suffering at the time of the trial, justifies an annulment of the marriage; and this, upon the ground that the husband has been guilty of fraud in stating to the person, who subsequently became his wife, that he was physically able to discharge the marital functions, when, in fact, the exercise of those functions was certain to afflict her with a loathsome disease. ■
    
      Action by a mother to annul the marriage of her minor daughter ' on the ground of fraud. The action was tried before Roger Foster, ■ as referee; his opinion states the facts of the case. Upon his report ■ Judge Truax granted a decree of annulment, and directed the record to be sealed on November 16, 1897.
    B. Lewinson, for plaintiff.
    Herman Joseph, for defendant.
   Foster, Referee.

This action was brought under sections 1743 and 1750 of the Code of Civil Procedure by a mother to annul for fraud the marriage of .her minor daughter. The following facts were proved upon the trial before me at which both parties were represented by counsel:

The marriage was solemnized-on February 9, 1897. . The wife was then twenty years of age. Before the ceremony in a conversation between them during their engagement the defendant told her that he was in good health. In reliance upon this statement she entered into the marriage relation. The representation was false and fraudulent. For he was then, as he well knew, afflicted with a chronic-and contagious venereal disease. Within one week from their marriage his wife contracted the disease from him; she has .suffered so acutely from it that her life was endangered; and she is not yet cured; nor is he so far as the evidence discloses. Immediately after her discovery of his condition she left him and they have since lived apart. There are no offspring of the marriage, and she is not pregnant. ' ,

The case is .almost of first impression,' and the law upon the subject of the annulment of marriage for fratid is by no means clear. Its general principles, however, are well settled. Where there has been a consent and the minds of the parties have met when they joined in the bond, the fact that- either of them entered into it . upon the faith of a misrepresentation so material as to avoid an ordinary contract is in most cases no ground for allowing him or. her to be relieved upon a discovery of the fraud. “ The contract . of marriage is something more than a mere civil agreement between the -parties, the existence of which affects only themselves. It is the basis of the family, and-its dissolution, as well as its formation, is matter of public policy in which the body of the community is deeply interested, and it is to be governed by other considerations than those which obtain with regard to any ordinary civil contract inter partes. . For that reason the courts have been strict in laying down and in maintaining rules as to the annulment of this ■contract, and in requiring a somewhat higher degree of proof before permitting it to be set aside for fraud, than is requisite for the annulment of ordinary contracts, and in' insisting also that the fraud which shall invalidate the contract must be something more than a mere misrepresentation as to collateral matters.

“ Without examining fully into all the cases upon this subject, 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 Bishop on 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 (1 Schouler on Husband & Wife, § 27); and so also, it seems to be a well-established rule that no misconception of one party as to the character or fortune or temper of the other, however brought about, will support an allegation of fraud on which a dissolution -of the marriage contract, when once executed, can be obtained in a court of justice. Bishop on Marr. & Div., supra; Weir v. Still, 31 Iowa, 107. 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 re■quires should be rendered indissoluble except for the gravest ■ reasons. In the application of this rule the courts have properly proceeded to an extent which seems sometimes to work a hardship. Undoubtedly it is gravely important to every respectable man that the woman whom he takes to wife should be virtuous; and yet it is thoroughly well settled that the mere fact that the woman, previous to her marriage, has, without the knowledge of her husband, been guilty of incontinence affords no ground for setting aside the marriage contract, if she has reformed. Reynolds v. Reynolds, 3 Allen, 605; Leavitt v. Leavitt, 13 Mich. 452; 1 Bishop on Marr. & Div., supra.” Rumsey, J., in Fisk v. Fisk, 6 App. Div. 432, at pp. 434-435.

The language of Judge Rapallo in Blank v. Blank, 107 N. Y. 91, 96, and the decision of the Equity Term of the Superior Court of the city of New York, in Keyes v. Keyes, 6 Misc. Rep. 355, would support a more liberal doctrine; but in view of the express disapproval of King v. Brewer, 8 Misc. Rep. 587, and the limitations laid down in Fisk v. Fisk, supra, this case will be measured by the. rule laid down in the opinion of Judge Rumsey, above quoted1. The fraud which vitiates the marriage must be one which relates to the fundamentals of the relation; and one of those fundamentals is a physical capacity to discharge the marital duties; arid for each sex to do its part towards the production of their, offspring. The rule, however, is not restricted to a fraudulent concealment of physical impotency. For, in cases where the parties have had complete physical congress, marriages have been annulled because of the fraudulent concealment of the fact that at the time of.their celebration the woman was pregnant by a man other than her husband. Scott v. Shufeldt, 5 Paige, 43; Reynolds v. Reynolds, 3 Allen (Mass.), 605; Morris v. Morris, Wright (Ohio), 630. The fraudulent concealment or denial of ante-nuptial incontinency by either party with others, or even of the previous birth of an illegitimate child by the woman, are not, however, adequate grounds for the annulment. The reason for the distinction is cléarly stated by Judge Pryor, in Schrady v. Logan, 17 Misc. Rep. 329, 330: “ Pregnancy with an illegitimate child at the time of the marriage avoids it, for the reason, as stated by the courts and writers, 'that it • disables the wife for the present discharge of her proper functions, namely, giving offspring to her husband, and because it brings a. bastard to his bed to compete'for his fortune with his lawful issue.”

The duties imposed by the marital relation are reciprocal and each has an equal right to the performance of those imposed upon the other. The wife, as well as" the husband, has the right to offspring, and a fraud which conceals his disability to discharge his proper functions towards that end should entitle her to release. Where either party is in such a. physical condition that the discharge of the marital function will afflict the other with a loathsome disease, he or she is in my opinion not “ physically able ” to meet the marital obligations. The report of the referee in Meyer v. Meyer, 49 How. Pr. 311, upon which, however; no action seems to. have been, taken by the court, and where the fraudulently concealed disease affected the woman, confirms this position. In Devanbagh v. Devanbagh, 6 Paige, 175, 177, where Chancellor Walworth ‘held that curable imp'dtency was'not a ground for annulment,'although the woman refused'to submit to the operation necessary for the cure, fraud was expressly disproved. In the unreported case. of G— v. G—, on July 8, 1897, which was called to my attention after the foregoing opinion was written, a judgment was entered at the direction of Mr. Justice Truax, dissolving a marriage for fraud in the suppression by the defendant of the fact that he was afflicted at the time of marriage with syphilis, which he gave to; his wife and which was transmitted to a child bom of the marriage, who afterwards died. One of the findings was as follows:

“ The representations made by the defendant to the plaintiff and to her friends and relatives on her behalf as to his physical condition and freedom from constitutional and organic disease constitute a fraud on plaintiff and entitle her to have the marriage aforesaid contracted between herself and the defendant in reliance upon such misrepresentation absolutely annulled and dissolved.”

Although the disease fraudulently concealed in the case at ,bar was of a less virulent character and one that, perhaps, would be, more correctly described as local rather than as constitutional, the principle seems to be the same; and this decision would be binding upon me even if it were in conflict with my own views.

The issues are, consequently, decided in favor of the plaintiff; and a report herewith submitted recommending the annulment of the marriage.

Ordered accordingly.  