
    Joseph Allen, Plaintiff, v. Victoria Allen, Defendant.
    Supreme Court, Special Term, Albany County,
    March 4, 1948.
    
      Thomas A. Allen for plaintiff.
    lie appearance for defendant.
   Bookstein, J.

Plaintiff husband sues defendant wife for an annulment of their marriage which occurred on March 15,1937. The basis for the action is fraud and the action is not defended.

The gravamen of the action is the unredeemed promise by the defendant that she would have children.

Plaintiff and defendant lived together as husband and wife for two years. Means to prevent birth of children were employed from the time of marriage until the parties separated. Contraceptives, however, were employed by the plaintiff and not by the defendant, it being the plaintiff’s testimony that this was done on the insistence of the defendant.

Under the circumstances, if any fraudulent representations were made by defendant, plaintiff has waived the fraud by his own continuous conduct for the two years during which the parties lived together, and after full knowledge of the alleged fraud. (Civ. Prac. Act, § 1139.)

The evidence discloses that the separation after two years of marriage was not due to the alleged fraud but rather to the fact that the plaintiff’s work called him elsewhere.

Under these circumstances, the application for a judgment annulling the marriage is denied and the complaint is dismissed upon the merits.

Submit decision and judgment accordingly.  