
    Virginia Freitag, Plaintiff, v. Joseph V. Freitag, Defendant.
    Supreme Court, Special and Trial Term, Kew York County,
    June 11, 1963.
    
      Gainsburg, Gottlieb, Levitan <& Cole (Emanuel Baetich of counsel), for plaintiff. Samuel J. Siegel for defendant.
   Owen McGtvebn, J.

The plaintiff wife herein seeks an annulment of her marriage on the ground that the defendant husband fraudulently concealed from her that before marriage he had homosexual tendencies, emotional and other illnesses.

The proof revealed that the couple became acquainted at least two years before the marriage, which occurred on September 25, 1960. It also appeared that they admittedly were intimate before the marriage, apparently had a not unhappy honeymoon and an uneventful three weeks of cohabitation upon their return. However, at that time, four weeks after the marriage, according to the plaintiff, the defendant became impotent and incapable of further fulfilling his marital contract. Two or three weeks following this development, the defendant, according to the plaintiff, confessed his history of prior homosexuality, and as to this revelation the plaintiff professes to be aghast.

There was also testimony, taken subject to a motion to strike, that the defendant conferred professionally with a psychologist about his condition. Also, that upon one of these visits the defendant himself told of his homosexual experiences prior to marriage. The court now denies the motion to strike.

After reading the record of the trial and the briefs submitted by counsel for the plaintiff, the court is unable to conclude either that we have here a true case of homosexuality or that the condition of the defendant is incurable. Both before and after marriage the couple admittedly did have a mutual heterosexual orientation, apparently satisfactory to the plaintiff. In any event, many months after the marriage, indeed, after her alleged discovery, we find the plaintiff sending the defendant a letter couched in endearing terms. And the twain did not finally go asunder until October 26, 1961, or more than a year after the marriage and about a year subsequent to her alleged ascertainment of her husband’s perversions. Nor is there any claim that his impotence antedated the marriage or any indication that it would be perpetual.

The complaint is dismissed, and judgment is directed in favor of the husband.  