
    Mary C. Howardell, Plaintiff, v. George S. Howardell, Defendant.
    Supreme Court, Special Term, New York County,
    April 24, 1956.
    
      Louis I. Kravits for plaintiff.
    No appearance for defendant.
   McGivern, J.

This is a motion to disaffirm the report of the Official Referee, which said report recommended that the complaint herein for annulment based upon fraud be dismissed. The fraud alleged consisted of a promise made by defendant before the marriage that he, a Protestant, intended to embrace the Catholic faith and marry the plaintiff in a religious ceremony.

The report of the Official Referee asserts that defendant, after the civil marriage, gave evidence of his intention to become a Catholic by going to receive instructions at the Chancery, but that however the questioning did not meet with his approval and so he decided not to return for further instructions. The Referee then states that this would seem to indicate that he intended to become a Catholic but changed his mind during the instruction period; that such a change of mind does not constitute a fraud in the absence of a showing that defendant’s entire conduct was fraudulent in its inception and employed only to deceive the plaintiff.

The testimony before the Referee also disclosed the fact that defendant went to the Chancery once before the parties married, but that he did not go again because of the defendant’s aversion to some of the questioning propounded to him by the clergyman in charge of his matter. Notwithstanding this episode, the defendant went ahead with the civil ceremony.

In differing with the learned Official Referee, this court finds that one visit to the Chancery office is not a course of instructions and did not manifest any abiding resolve to embrace the faith of the plaintiff or to enter into a religious ceremony. If the defendant had undergone a course of instructions and then did not go forward because of spiritual scruples, or doubts, or hesitations of the mind, this court would believe his conduct reflected good faith. But one visit, and no more, plainly indicated a superficiality and a captiousness that does not merit credence or serious treatment.

It is the finding of this court, after a scrutiny of the record, that the defendant had no intention of embracing the plaintiff’s faith and of submitting himself to a religious ceremony, and that his antenuptial promise to do the same was fraudulently made as an inducement to the plaintiff to marry him civilly.

Accordingly, the court grants this motion to disaffirm the report of the Official Referee and directs judgment in favor of the plaintiff.

Submit findings, conclusions and judgment.  