Di Lorenzo v. Lorenzo

• Decision Date: 28 April 1903
• Citation: 67 N.E. 63,174 N.Y. 467
• Parties: DI LORENZO v. DI LORENZO.
• Court: New York Court of Appeals Court of Appeals

174 N.Y. 467

67 N.E. 63

DI LORENZO

v.DI LORENZO.

Court of Appeals of New York.

April 28, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Gregorio Di Lorenzo against Johanna Di Lorenzo. From a judgment of the Appellate Court (75 N. Y. Supp. 878) reversing a judgment in favor of the plaintiff and granting a new trial, plaintiff appeals. Reversed.

This action was brought to have the marriage between the plaintiff and the defendant annulled upon the ground that the former's consent thereto was induced by the fraud of the latter. It is alleged in the complaint, in substance, that prior to the marriage of the parties, in the city of New York, in November, 1891, the defendant falsely represented to the plaintiff that in October, 1891, during a period of time when he was absent from the state, she had given birth to a male child, of which he was the father, whom she exhibited to him as such; that he, believing these representations, and, in order to legitimatize the child, was induced to marry the defendant; that without such representations he would not have made the marriage; that the defendant's representations were false, in that she had not given birth to any child, but had fraudulently procured one to produce to the plaintiff for the purpose of inducing him to consent to marry her; that, as a result of the stratagem, he did marry her; that there has been no issue of the marriage; that the falsity of these representations was discovered but a short time before the commencement of the action, and that since their discovery he has not cohabited with the defendant. In answer to the complaint, the defendant denied so much of its allegations as related to the fraudulent representations, and set up an earlier marriage with the plaintiff in 1890, which was consummated by cohabitation. After the joinder of issue, the defendant moved for a jury trial, and the trial court framed specific questions of fact, which were tried out before a jury, who rendered a verdict upon each. The first question was whether the parties had been earlier married by an Italian minister as alleged by the defendant. To this question the jury answered, ‘No.’ The second question was whether, in October, 1891, or prior thereto, the defendant, for the purpose of inducing the plaintiff to marry her, falsely and fraudulently represented to him that, during plaintiff's absence from the state, she had given birth to a male child, of which he was the father, and whether she then and there produced and exhibited said child to him. To this question the jury answered, ‘Yes.’ The third question was whether the plaintiff, relying upon such representations of the defendant, and believing the same to be true, married the defendant in November, 1891, at the city of New York. To this question the jury answered, ‘Yes.’ The fourth question was whether said defendant gave birth to said male child, or to any child, on or about October 5, 1891. To this question the jury answered, ‘No.’ Upon the action coming on regularly to be heard at a Special Term, the court adopted these findings of the jury, and filed a decision embodying the facts established by the verdict, and, further, finding that at the time of the marriage the plaintiff was seised of real estate of the value of $65,000, as the defendant well knew; that there had not been any issue of the marriage; that at the time of the marriage the parties were, and ever since have been, residents of the state; that since the discovery of the defendant's fraud the plaintiff had not cohabited with her, and that the plaintiff was entitled to a judgment annulling his marriage with the defendant. The judgment entered upon the decision was appealed from by the defendant to the Appellate Division in the Second Department, where it was reversed, and a new trial was ordered. From the order of reversal the plaintiff has appealed to this court.Byron Traver, for appellant.

Edward Hymes, Emanuel M. Friend, and Michael Schaap, for respondent.

GRAY, J.

The order of the Appellate Division reversed upon questions of law only, and the facts as found by the trial court, being undisturbed by the determination of the Appellate Division, must be taken to be true.

The theory of the decision by the Appeallate Division, as I understand it, is that the fraud in this case was insufficient to warrant the court in annulling the marriage between the parties, and that the considerations of public policy which environ the marriage relation as a status so far take it out of the domain of ordinary contracts as to render this conclusion necessary. It was considered that the representations of the defendant ‘worked no wrong for which the law, as at present established,’ would afford any remedy, in the right to an annulment of the marriage. The prevailing opinion of the learned court is very elaborate and clear, and its conclusions are deliberately reached upon a careful consideration of the authorities. In my opinion, however, it errs in failing to give due effect to the statutory provision relating to the annulment of a marriage for fraud, and in not giving to the element of a free and true consent in a marriage contract that high importance which it has in contracts generally.

The question, therefore, is whether, upon facts establishing that the consent of the plaintiff to marry the defendant was obtained by a fraudulent representation and by a stratagem, causing him to believe that he was the father of the defendant's child, the fraud was of such a material nature as to warrant the court in decreeing the annulment of the marriage contract. The law of this state with respect to matrimonial actions is regulated by statute. The Revised Statutes early conferred upon the chancellor the jurisdiction to declare a marriage contract void and to annul the marriage (2 Rev. St. [1st Ed.] 142), and the Code of Civil Procedure, into which their provisions were carried, confers a general jurisdiction upon the courts of the state, which may be called into exercise for certain causes existing at the time of the marriage. One of those causes is stated to be when ‘the consent of one of the parties was obtained by force, duress, or fraud’; and the only limitation imposed, where the action is on the ground of fraud, is that it must appear that the parties have not, at any time before the commencement of the action, ‘voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.’ Code Civ. Proc. § 1743, subd. 4; Id. § 1750. This language is broad, and warrants but the one reasonable construction that the fraud must be material to that degree that, had it not been practiced, the party deceived would not...