
    Leonard Fundaro, Appellant, v. Theodora Fundaro, Defendant.
   Order denying plaintiff’s motion to confirm the report of an Official Referee in an action for an annulment of marriage, reversed on the law, without costs, and the motion granted, and an interlocutory judgment of annulment is directed to be entered, without costs. The findings of the Official Referee are affirmed. The refusal of the defendant, after the marriage ceremony, to live with the plaintiff in the status of husband and wife, entitled the plaintiff to an annulment of the marriage where there had been no consummation thereof. There is implied in the promise of marriage, and the making of the contract of marriage, an obligation to perform the duties incident to the marriage status. A refusal to do so implies a fraud that goes to the essence of the contract and entitles the injured party to relief. Here the Official Referee credited the proof that there had been such a refusal, and that there had been no consummation of the marriage. His findings, sustaining a prima facie case, should not have been disregarded. (Ferguson V. Ferguson, 271 App. Div. 976; Ferrillo v. Ferrillo, 272 App. Div. 779.) Carswell, Adel, Nolan and Sneed, JJ., concur; Hagarty, Acting P. J., concurs on the authority of Ferguson v. Ferguson (271 App. Div. 976).  