16 N.Y.2d 191, Kober v. Kober

Citation16 N.Y.2d 191, 264 N.Y.S.2d 364
Party NameKober v. Kober
Case DateOctober 28, 1965
CourtNew York Court of Appeals

Page 191

16 N.Y.2d 191

264 N.Y.S.2d 364

Jacqueline KOBER, Appellant,

v.

Josef KOBER, Respondent.

New York Court of Appeals

October 28, 1965.

[264 N.Y.S.2d 365] Dino Cerutti, New York City, for appellant.

Page 192

Eli H. Bronstein and Henry G. Van Veen, New York City, for respondent.

VAN VOORHIS, Judge.

This is an annulment suit. The question is one of pleading. The appeal presents solely whether the second cause of action in the wife's amended complaint is sufficient in law. Special Term denied the defendant husband's motion to dismiss for insufficiency, stating: 'Whether the issue herein refers to matters vital to the marriage relationship must be determined at the trial.' The Appellate Division reversed, holding that the fraud alleged in the second cause of action was not vital to the marriage relationship. An earlier complaint had been dismissed at Special Term, with leave to plead over, in an opinion by Loreto, J., the reasoning of which would sustain the sufficiency of this cause of action in the amended complaint which is now before us.

Page 193

The material portions of this cause of action allege that the parties were married at New York City on June 28, 1963 (this annulment action was begun April 22, 1964) and that at and before the marriage the defendant husband falsely and fraudulently concealed from the plaintiff that he had been an officer in the German Army and a member of the Nazi party during World War II, and 'was fanatically anti-Semitic; that he believed in, advocated, approved and even applauded Hitler's 'Final Solution' of the Jewish question, namely the extermination of the Jewish people; and that he would require plaintiff to 'weed out' all of her Jewish friends and to cease socializing with them.' The next paragraph alleges that plaintiff married defendant believing him to be without [264 N.Y.S.2d 366] fanatic anti-Semitism and without the belief that the Jewish people should be exterminated, 'all of which he had at the date thereof, and during the marriage and all of which he expressed after and during the marriage so as to make the marital relationship unworkable.' The next paragraph further alleges: 'That plaintiff relied on defendant's apparent normal character, high moral beliefs and absence of fanatic anti-Semitism and would not have married him had she known prior to the aforementioned marriage that the defendant had been a member of the Nazi Party, was fanatically anti-Semitic, believed that all Jews should be exterminated, and that he would require plaintiff to cease socializing with all her Jewish friends, and had the defendant not been guilty of said fraudulent concealment.'

A pleading, the sufficiency of which is being tested, 'is deemed to allege whatever can be implied from its statements by fair intendment and the whole of it must be considered.' (Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 114, 150 N.Y.S.2d 792, 796, 134 N.E.2d 63, 66.) All of the allegations, for the purpose of such a motion, must be assumed to be true, and the cause of action must stand "'If in any aspect upon the facts stated the plaintiff is entitled to a recovery' * * * The whole of the pleading must be considered. * * * (it) is deemed to allege 'whatever can be implied from its statements by fair and reasonable intendment' * * * The question * * * is whether (there) 'can be fairly gathered from all the averments.' * * * the requisite allegations of any valid cause of action cognizable by the state courts" (Dulberg

Page 194

v. Mock, 1 N.Y.2d 54, 56, 150 N.Y.S.2d 180, 181, 133 N.E.2d 695, 696, quoting from Condon v. Associated Hosp. Serv., 287 N.Y. 411, 414, 40 N.E.2d 230). As stated in the Dulberg case (1 N.Y.2d p. 57, 150 N.Y.S.2d p. 182, 133 N.E.2d p. 696), 'Whether or no plaintiff will be able to establish such allegations is beside the point at this pleading stage.'

Bearing these principles in mind, we hold that this portion of the amended complaint states a cause of action. In Shonfeld v. Shonfeld (260 N.Y. 477, 184 N.E. 60) an annulment was granted under section 1139 of the Civil Practice Act (now Domestic Relations Law, Consol.Laws, c. 14, § 140, subd. (e)), husband against wife, where the former had stated that he was in no position to marry because he was not able to make a living, in response to which the defendant had stated fraudulently that, if it was merely a matter of sufficient money to establish him in a business of his own, she had enough, if such an opportunity presented itself. The opportunity did arise, but she refused to advance the money before marriage, and the trial court had found as facts that the representations thus made were false, were believed and relied upon, and induced the plaintiff's consent to the marriage, and that if they had not [264 N.Y.S.2d 367] been made he would not have consented. The case reached this court in the posture that a decree of annulment had been refused upon the ground that these representations did not go 'to the essence of the marriage contract.'

The decree was granted in this court upon the ground that, if the true facts had been known to the husband, he would not have entered into the marriage. 'The obligation of a husband to support a wife is no less lightly to be entered into than the other obligations of...

To continue reading

Request your trial
70 practice notes
  • 88 Misc.2d 619, Horizon Adirondack Corp. v. State
    • United States
    • October 21, 1976
    ...of claimant's real property (See, Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 407, 236 N.E.2d 634, 636; Kober v. Kober, 16 N.Y.2d 191, 193--194, 264 N.Y.S.2d 364, 365--366, 211 N.E.2d 817, 818; Foley v. D'Agostino, 21 A.D.2d 60, 65, 248 N.Y.S.2d 121, 127), may be considered ......
  • 172 Misc.2d 684, Matter of Johnson
    • United States
    • March 14, 1997
    ...(DRL § 7) and an action may be maintained to annul it" (Shonfeld v. Shonfeld, 260 N.Y. 477, 479, 184 N.E. 60; Kober v. Kober, 16 N.Y.2d 191, 264 N.Y.S.2d 364, 211 N.E.2d 817). Upon consideration of these precedents, current statutes including our modern procedural law with its concomit......
  • 35 Misc.3d 1211(A), 2012-50652, K.A.L. v. R.P.
    • United States
    • March 19, 2012
    ...to the degree that, had such representations not been made, her father would not have consented to the marriage. See Kober v. Kober, 16 N.Y.2d 191, 195 (1965) (any fraud is adequate which is material, to that degree that, had it not been practiced, the party deceived would not have consente......
  • 51 A.D.2d 448, Zibbon v. Town of Cheektowaga
    • United States
    • New York New York Supreme Court Appelate Division Fourth Department
    • April 9, 1976
    ...as we must, that all of the allegations are true (Cohn v. Lionel Corp., 21 N.Y.2d 559, 289 N.Y.S.2d 404, 236 N.E.2d 634; Kober v. Kober, 16 N.Y.2d 191, 193, 264 N.Y.S.2d 364, 365, 211 N.E.2d 817, 818), we find that at about 4:30 A.M. on the morning of August 18, 1971 the Cheektowaga Police ......
  • Request a trial to view additional results
70 cases
  • 88 Misc.2d 619, Horizon Adirondack Corp. v. State
    • United States
    • October 21, 1976
    ...of claimant's real property (See, Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 407, 236 N.E.2d 634, 636; Kober v. Kober, 16 N.Y.2d 191, 193--194, 264 N.Y.S.2d 364, 365--366, 211 N.E.2d 817, 818; Foley v. D'Agostino, 21 A.D.2d 60, 65, 248 N.Y.S.2d 121, 127), may be considered ......
  • 172 Misc.2d 684, Matter of Johnson
    • United States
    • March 14, 1997
    ...(DRL § 7) and an action may be maintained to annul it" (Shonfeld v. Shonfeld, 260 N.Y. 477, 479, 184 N.E. 60; Kober v. Kober, 16 N.Y.2d 191, 264 N.Y.S.2d 364, 211 N.E.2d 817). Upon consideration of these precedents, current statutes including our modern procedural law with its concomit......
  • 35 Misc.3d 1211(A), 2012-50652, K.A.L. v. R.P.
    • United States
    • March 19, 2012
    ...to the degree that, had such representations not been made, her father would not have consented to the marriage. See Kober v. Kober, 16 N.Y.2d 191, 195 (1965) (any fraud is adequate which is material, to that degree that, had it not been practiced, the party deceived would not have consente......
  • 51 A.D.2d 448, Zibbon v. Town of Cheektowaga
    • United States
    • New York New York Supreme Court Appelate Division Fourth Department
    • April 9, 1976
    ...as we must, that all of the allegations are true (Cohn v. Lionel Corp., 21 N.Y.2d 559, 289 N.Y.S.2d 404, 236 N.E.2d 634; Kober v. Kober, 16 N.Y.2d 191, 193, 264 N.Y.S.2d 364, 365, 211 N.E.2d 817, 818), we find that at about 4:30 A.M. on the morning of August 18, 1971 the Cheektowaga Police ......
  • Request a trial to view additional results