
    ELSER v. ELSER.
    (Supreme Court, Special Term, Bronx County.
    August 28, 1916.)
    Marriage <3=58(2)—Annulment—Grounds—Epilepsy.
    The wife’s epilepsy, limiting, but not preventing, copulation, is not, in the absence of fraud, ground for annulment of the marriage.
    [Ed. Note.—For other cases, see Marriage, Cent. Dig. § 116; Dec. Dig. <3=58(2).]
    Suit for annulment of marriage by one Elser against one Elser. Complaint dismissed.
    Frank K. Johnston, of New York City, for plaintiff.
    Charles S. Levy, of New York City, for defendant.
   MULLAN, J.

The husband sues to annul the marriage upon the

grounds (1) that the defendant was physically incapable, etc., and (2) that he was induced to enter into the marriage contract by her fraud in concealing from him that she was an epileptic, and in leading him to believe, through statements to that effect, that she was in good health. It was proved, even conceded, that the defendant was, at the time of the marriage, and has been ever since, afflicted with the disease known as epilepsy.

As to the first ground urged, it was shown that the exercise of the matrimonial function induced on the part of the wife paroxysms or convulsions symptomatic of her disease, and that this made copulation abhorrent to her and unsatisfactory to him, and thus lessened its frequency; but, as copulation was possible, no more need be said on that subject.

As to the charge of fraud, I find there was none. I had a physician called to examine the wife, and he testified that the statistics show that in about 16 per cent, of the epileptic cases covered by the records from which tire statistics were compiled the taint was inherited. The plaintiff’s counsel urges that public policy requires an annulment decree in order to prevent the coming into the world of progeny tainted by an epileptic strain, but we have not as yet come to that refinement of civilization.

Complaint dismissed, without costs.  