Kober v. Kober

CourtNew York Court of Appeals
Writing for the CourtVAN VOORHIS; DYE, FULD and BERGAN, JJ., concur with VAN VOORHIS; DESMOND
Citation16 N.Y.2d 191,264 N.Y.S.2d 364,211 N.E.2d 817
Parties, 211 N.E.2d 817 Jacqueline KOBER, Appellant, v. Josef KOBER, Respondent.
Decision Date28 October 1965

Dino Cerutti, New York City, for appellant.

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


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.

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 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 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 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 the marital relation. The ability to support is correspondingly important. * * * The business which defendant's mythical money was to establish was plaintiff's only prospect of supporting her. The misrepresentation was not a mere exaggeration or misstatement of her means or prospects, which might or might not be an incentive to marriage. It was a definite statement of an existing fact without which, as defendant clearly understood, no marriage was presently practicable' (supra, p. 482, 184 N.E. p. 62).

The development of the law of annulment was reviewed, the court pointing out (pp. 476-480, 184 N.E. p. 61) that the fraud need no longer 'necessarily concern what is commonly called the essentials of the marriage relation the rights and duties connected with cohabitation and consortium attached by law to the marital status. (di Lorenzo v. di Lorenzo, supra (174 N.Y. 467, 67 N.E. 63); Beard v. Beard, 238 N.Y. 599, 144 N.E. 908; Domschke v. Domschke, 138 App.Div. 454, 122 N.Y.S. 892). Any fraud is adequate which is 'material, to that degree that, had it not been practiced, the party deceived would not have consented to the marriage' (di Lorenzo v. di Lorenzo, supra, p. 471 of 174 N.Y., 67 N.E. 63, 64), and is 'of such a nature as to deceive an ordinarily prudent person.' (Id., page 474 of 174 N.Y., 67 N.E. 63, 65.)' (See Woronzoff-Daschkoff v. Woronzoff-Daschkoff, 303 N.Y. 506, 511, 104 N.E.2d 877, 880). Although it is not enough to show merely that one partner married for money and was disappointed (Woronzoff-Daschkoff v. Woronzoff-Daschkoff, supra, 303 N.Y. p. 512, 104 N.E.2d p. 880), and the decisions upon the subject of annulment of marriage have not always been uniform, there have been circumstances where misrepresentation of love and affection, with intention to make a home, were held sufficient (Schinker v. Schinker, 271 App.Div. 688, 68 N.Y.S.2d 470), likewise in case of fraudulent misrepresentations concerning the legitimacy of children of the wife by a supposedly prior marriage (Domschke v. Domschke, 138 App.Div. 454, 122 N.Y.S. 892), or concerning prior marital status (Smith v. Smith, 273 App.Div. 987, 77 N.Y.S.2d 902). Concealment of prior marital status was held to be sufficient in Costello v. Costello (155 Misc. 28, 279 N.Y.S. 303), concealment of affliction with tuberculosis in Yelin v. Yelin (142 Misc. 533, 255 N.Y.S. 708) and Sobol v. Sobol (88 Misc. 277, 150 N.Y.S. 248); failure to reveal treatment of a mental disorder (schizophrenia, catatonic type) was held to be enough in Schaeffer v. Schaeffer (20 Misc.2d 662, 192 N.Y.S.2d 275); material misrepresentation of age in Tacchi v. Tacchi (47 Misc.2d 996, 195 N.Y.S.2d 892); fraudulent promise to become a United States citizen in Siecht v. Siecht, Sup. (41 N.Y.S.2d 393), where after years of married life the husband learned that his wife was a member of the Deutsche Bund and that her failure to become a citizen had been deliberate because of disloyalty to the United States. In Laage v. Laage (176 Misc. 190, 26 N.Y.S.2d 874), an annulment was granted to a wife by reason of the husband's false representation that he was a naturalized American citizen, after she had stated to him that she would not marry a German-born alien. In Brillis v. Brillis (207 Misc. 104, 137 N.Y.S.2d 32, affd. 3 A.D.2d 662, 158 N.Y.S.2d 780), a marriage was annulled where the evidence established that the defendant did not intend, at the time when he induced plaintiff's consent to the marriage, to...

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