
    Cynthia J. Kempler, Plaintiff, v. Edward Kempler, Defendant.
    Supreme Court, Special Term, Queens County,
    April 24, 1950.
    
      Marry Simon for plaintiff.
    
      Demov, Callahan & Morris for defendant.
   Hallinan, J.

In this action for an annulment brought by plaintiff against her husband the complaint sets forth two causes of action, first, defendant’s physical incapacity, second, fraud. Plaintiff moves to have certain issues as to the cause of action in fraud tried before a jury. Defendant opposes that motion and himself moves that the case be preferred for trial.

The basis of the fraud alleged is the false representation by the defendant that he was physically capable of consummating the marriage. The issues as to which a trial by jury is sought are whether representations were made by the defendant and, if made, whether they were false and made with intent to deceive the plaintiff.

The Legislature has created the right to have a marriage annulled on the ground of physical incapacity. (Civ. Prac. Act, § 1141.) It has not, however, granted trial by jury as of right in an action for an annulment ‘ ‘ where it is founded upon an allegation of the physical incapacity of one of the parties thereto.” (Civ. Prac. Act, § 1142.) In such actions the granting of jury trials is discretionary with the court.

Relief upon either of the causes of action stated in this complaint may be had by the plaintiff only upon proof that the defendant was, prior to the marriage, physically incapable of consummating it, that his incapacity continues, and that it is incurable. (Anonymous v. Anonymous, 49 N. Y. S. 2d 314, 317.) The causes of action differ only in the label. Such a difference may not be permitted to subvert legislative intent. (Civ. Prac. Act, § 1142.) The gravamen of this complaint being the alleged physical incapacity of the defendant, the plaintiff is not entitled to a jury trial as of right. Insofar as her motion may be deemed to be addressed to the discretion of the court, it is denied.

Since the defendant has failed to show any sufficient reason why a trial of the issues herein should be had out of its regular order, his motion is also denied.

Submit order.  