Friedman v. Libin

• Decision Date: 26 November 1956
• Citation: 4 Misc.2d 248,157 N.Y.S.2d 474
• Parties: Miriam FRIEDMAN, a/k/a Miriam Rubin, Plaintiff, v. Sally LIBIN, as Administratrix of William Rubin, a/k/a William Libin, Defendant.
• Court: New York Supreme Court

Page 474

157 N.Y.S.2d 474

4 Misc.2d 248

Miriam FRIEDMAN, a/k/a Miriam Rubin, Plaintiff, v. Sally LIBIN, as Administratrix of William Rubin, a/k/a William Libin, Defendant.

Supreme Court, Special Term, Bronx County, Part I.

Nov. 26, 1956.

Leight, Shaw, Drimmer & Weinstein, New York City (Solomon Weinstein, New York City, of counsel), for plaintiff.

George N. Kanoff, New York City, for defendant.

MATTHEW M. LEVY, Justice.

The plaintiff has brought suit against the administratrix of the goods, chattels and credits of the decedent. The gravamen of the complaint is in deceit. The plaintiff alleges that the defendant's intestate represented to her that he was not married and that he and the plaintiff could validly marry, and that, relying upon these representations, she entered into a marriage contract and ceremony with the decedent on or about July 5th, 1945, and lived with him thereafter as his wife until the time of his death on January 19, 1955. She alleges further that on July 5, 1945, the decedent was (and, for many years prior thereto, had been) married to another, and that that marriage was in fact in full force and effect on July 5, 1945, and thereafter during the entire period of his subsequent lifetime. The plaintiff further alleges that she would not have entered into a marriage contract and the religious ceremony with the decedent nor would she have lived with the decedent until his death except for her reliance upon the false and fraudulent representations made to her by the decedent. The plaintiff seeks compensatory and exemplary damages based upon the rendition of wifely services, matrimonial society and connubial consortium to the decedent, the advance of moneys for and on his behalf, the deprivation of an opportunity to find and lawfully to marry a suitable spouse, and her subjection to embarrassment, humiliation, disgrace and mental anguish.

Aside from certain denials not here material, the defendant asserts two affirmative and allegedly complete defenses in her answer. These defenses read as follows:

'Third: That subsequent to commission of the acts alleged in the complaint herein to constitute fraud and deceit, and with full knowledge and discovery of the facts that decedent had been married and that the wife of decedent had been living on and after July 5, 1945, and was his lawful wife and that there had been issue of said marriage, plaintiff cohabited with decedent and continued to accept the benefits of the alleged marital relationship to have existed between plaintiff and decedent, and that plaintiff duly waived the alleged fraud and deceit of the decedent.'

* * *

* * *

'Fourth: That the cause of action set forth in the complaint is one to recover moneys for or arising out of breach of contract to marry, which right of action has been abolished by Sections 61a, 61b, 61c and 61d of the Civil Practice Act.'

The plaintiff has moved before me, pursuant to rule 109 of the Rules of Civil Practice, to strike these defenses as insufficient in law on their respective faces. I shall consider each defense separately. As to the first defense (paragraph third of the answer). It will be recalled that in the complaint the plaintiff alleges that she lived with the decedent from the time of their marriage until the decedent's death, a period of nearly ten years. In the answer, the defendant alleges, in substance and effect, that the plaintiff continued to live with the decedent subsequent to her discovery that (at the time of his marriage to the plaintiff) he was married to another; that, notwithstanding that she learned that her marriage to the decedent was bigamous and thus void, she continued to live with him as his wife; and that, with full knowledge of the facts, the plaintiff cohabited with the decedent and continued to accept the benefits of the alleged marital relationship between them; and, in consequence, that the plaintiff 'duly waived the alleged fraud and deceit' of the decedent.

As I see it, the basic question raised by this motion in relation to the first defense is: Does the fact that--some time subsequent to the void marriage ceremony and the commencement of bigamous cohabitation--the plaintiff discovered that the decedent had been and still was married to another woman, and that, notwithstanding this knowledge, had continued to live with the decedent as his wife, preclude the plaintiff from maintaining this suit? I have been cited, and I have been able to find, no precedent squarely in point. The cases where it appears that the 'wife' had ceased to live with her 'husband' immediately upon discovery of the truth are not in point. It seems, therefore, that I must seek to resolve the present issue as an original proposition.

'Waiver' is a term much used--and often abused. In different contexts, it denotes different sets of material facts which may or may not be sufficient to bar a party from asserting a right (3 Williston on Contracts, Rev.Ed., § 679, at pp. 1963-1964). It does not aid in a solution of the present problem to quote the oft-repeated statement that: 'Waiver has often been defined as the voluntary relinquishment of a known right. Clark v. West, 193 N.Y. 349, 360, 86 N.E. 1.' Ansorge v. Belfer, 248 N.Y. 145, 150, 161 N.E. 450, 452; Davison v. Klaess, 280 N.Y. 252, 261, 20 N.E.2d 744, 748. Where the courts talk in terms of 'waiver' of a cause of action for fraud, they commonly employ the word to mean something more than the naked intention to surrender the complaint. I have been unable to find any authoritative case which holds that a mere intention to surrender a right--without more--bars a later assertion of that right; and I doubt that the instant cause of action for deceit was waived, if by 'waiver' is meant solely an 'intentional relinquishment of a known right'. The language of the cases, at times, is in terms of 'waiver'; but the holdings are on other factual bases entirely.

There are, for example, cases which basically, although not always expressly, invoke the theory of estoppel. May that doctrine be employed to foreclose the plaintiff in the case at bar? I think not. While the doctrine of estoppel in pais is of equitable origin, it is available at law. Wikiosco, Inc., v. Proller, 276 App.Div. 239, 94 N.Y.S.2d 645. But it is the essence of 'estoppel by conduct' that the one asserting it must have been influenced to change his position in reliance upon the conduct of the one sought to be estopped. Wiedersum v. Atlantic Cement Products, Inc., 261 App.Div. 305, 25 N.Y.S.2d 496. The defendant in the instant case has not pleaded any facts showing a change of position by the decedent in reliance upon the plaintiff's continuance of the alleged marital relationship.

'Waiver of tort' is the doctrine that, where the commission of a tort results in the unjust enrichment of the defendant at the plaintiff's expense, the plaintiff may disregard or 'waive' the tort action and sue instead on a fictitious contract for restitution of the benefits which the defendant has received. Harway v. Mayor, etc., of City of New York, 1 Hun., N.Y., 628; Corbin, Waiver of Tort and Suit in Assumpsit, 19 Yale L.J. 221. This doctrine is obviously inapplicable to the case at bar.

There are cases in which it is said that one who elects an alternative remedy 'waives' the other inconsistent alternative remedy. But these cases do not truly hold that the party has 'waived' a given remedy because of an intention to surrender it. Professor Williston, in his Contracts, Revised Edition, Volume 3, sections 683 and 684, at pages 1969-1971, aptly says:

'Election as a term in the law is properly applied to a case where a person has the choice of one or two alternative and inconsistent rights or remedies. In choosing the one, he necessarily surrenders the other * * *

'One who elects one alternative is often said to waive the other; but, unless 'waive' is given a very broad meaning, the expression is inexact, since he could not have both. His only right was to make a choice * * *

'In a correct definition of waiver, wherever that word is used in the sense of election, the requisite of even apparent intention to surrender a right is absent. The law simply does not permit a party in the case supposed to exercise two alternative or inconsistent rights or remedies. Even though he expressly states that he intends to reserve a right, he will, nevertheless, lose it if he takes an inconsistent course.'

One who has been induced to enter into a contract by fraud may elect, after discovering the fraud, to affirm or to rescind the contract. While the remedy of rescission is not available if the party continues with the contract, Brennan v. National Equitable Investment Co., 247 N.Y. 486, 160 N.E. 924; Restatement, Contracts § 484, the law is well settled that, in situations which do not concern marriage, the mere acceptance of benefits of a contract induced by fraud is not sufficient to prevent the wronged party from claiming and recovering such damages as may have been suffered as a result of such fraud. Potts v. Lambie, 138 App.Div. 144, 122 N.Y.S. 935. A plaintiff is not precluded from bringing suit for damages for deceit although he has affirmed the contract subsequent to discovering the fraud--for fraud in the inducement renders a transaction voidable only, not void, and, therefore, the injured party may elect to affirm the contract and sue for damages, or he may rescind the contract and seek to re-establish the status quo (Pryor v. Foster, 130 N.Y. 171, 29 N.E. 123; Restatement, Contracts, § 476; 2 Sedgwick on Damages, § 439a, pp. 841-842).

The defendant relies upon Bentz v. Bentz, 188 Misc. 86, at page 88, 67 N.Y.S.2d 345, at page 347, and quotes therefrom as follows:

'Even assuming fraud in the inception of this marriage, it is inconceivable that plaintiff, as an ordinarily prudent person, would not have discovered that he was the victim thereof before the elapse of more than ten years. In...