
    Ethel C. Marks, Appellant, v. Albert A. Marks, Respondent.
   Plaintiff has appealed from a final order of Albany County Special Term of the Supreme Court, denying her application for judgment annulling her marriage by reason of fraud and dismissing her complaint. The action was uncontested, defendant husband having defaulted in appearance. The parties were married October 5, 1950. They lived with plaintiff’s parents in New York until early December, 1953, when she left her husband and moved to Albany. Her claim is that she was induced to marry defendant in reliance on his representations that he desired and intended to maintain a home for her and raise a family, but concealed from her that he never intended to do either. The court at Special Term found plaintiff’s proof insufficient to sustain her cause of action. There is no statutory definition of the fraud sufficient for annulment. Annulments are not decreed for any and every kind of fraud but only for such fraud as has to do with matters “vital” to the marriage relationship. (Woronzoff-Baschkoff v. Woronzoff-Baschkoff, 303 N. Y. 506, 511; Mirizio v. Mirizio, 242 N. Y. 74, 80; Lapides v. Lapides, 254 N. Y. 73, 80.) The statement or representation must appear to have been of such a nature as to deceive an ordinarily prudent person. (Bi Lorenzo v. Bi Lorenzo, 174 N. Y. 467, 474.) It should appear, too, that plaintiff ceased cohabitation immediately upon the discovery of the alleged fraud. Except under extraordinary circumstances, a plaintiff who claims fraud is under obligation to discover it within a reasonable time after marriage and on discovery to then disavow the marriage. (Matter of Bivette, 283 App. Div. 439, 440.) In every similar ease it is important that the court determine whether the proof adduced falls within the above rules and that he satisfy himself as to the bona fldes of the action. The court below examined plaintiff extensively on the merits and his determination should not be disturbed. Order unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.  