Tuck v. Tuck

• Decision Date: 10 July 1964
• Citation: 251 N.Y.S.2d 653,14 N.Y.2d 341,200 N.E.2d 554
• Parties: , 200 N.E.2d 554 Sharon K. K. TUCK, Appellant, v. Frederick TUCK, III, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 653

251 N.Y.S.2d 653

14 N.Y.2d 341, 200 N.E.2d 554

Sharon K. K. TUCK, Appellant, v. Frederick TUCK, III, Respondent.

Court of Appeals of New York.

July 10, 1964.

William E. Fuller and Edward R. Downing, New York City, for appellant.

Sheldon Lowe and Milton E. Polakoff, New York City, for respondent.

FULD, Judge.

We are concerned on this appeal solely with the sufficiency of the first cause of action set forth in the complaint before us. In essence, after specifying that the plaintiff and the defendant are residents of this State, the complaint alleges that the defendant, upon leading the plaintiff to believe that he intended to marry her, arranged a sham marriage ceremony in New Jersey with bogus judge, pretended witnesses and faked papers and that the plaintiff, accepting the bona fides of the defendant and the legitimacy of the ceremony, proceeded to live with him as his lawfully wedded wife. More specifically, the complaint recites that the defendant, advising the plaintiff that they were there to be married, persuaded her to go with him to New Jersey and participate in what he told her, and she in good faith thought, was a genuine marriage ceremony; that, following such ceremony, the parties returned to New York City where, among other places, they lived and cohabited as husband and wife until, approximately nine months later, the defendant announced to the plaintiff (for the first time) that the ceremony had been a fake, that they had not been legally married and that he planned to marry someone else. Substantial damages are sought for the injures assertedly suffered by the plaintiff.

The defendant, contending that the cause of action was one not for fraud and deceit but for seduction or breach of promise to marry and, as such, outlawed by the so-called heart balm statute (former Civil Practice Act, art. 2-A, § 61-a et seq., now Civil Rights Law, Consol.Laws, c. 6 art. 8, § 80 et seq.), moved to dismiss it for legal insufficiency. The court at Special Term denied the motion but the Appellate Division, by a closely divided vote, reversed and dismissed the challenged count.

There is no question that an action for deceit will lie where the defendant has induced the plaintiff to 'marry' and cohabit with him on the fraudulent representation that he was unmarried (see, e. g., Blossom v. Barrett, 37 N.Y. 434; Benintendi v. Benintendi, 298 N.Y. 848, 84 N.E.2d 150, affg. 273 App.Div. 969, 79 N.Y.S.2d 303, affg. 1 Misc.2d 474, 72 N.Y.S.2d 843; Friedman v. Libin, 3 A.D.2d 827, 161 N.Y.S.2d 826, affg. 4 Misc.2d 248, 157 N.Y.S.2d 474; see, also, Morris v. MacNab, 25 N.J. 271, 135 A.2d 657, 72 A.L.R.2d 948), and we perceive no reasonable basis for differentiating between a defendant's fraud with respect to his capacity to marry leading to a bigamous relationship (Domestic Relations Law, Consol.Laws, c. 14, § 6) and his fraud with respect to the celebration of a pretended or bogus marriage between the parties leading to an equally void relationship (Domestic Relations Law, § 11). The distinction sought to be drawn by the Appellate Division between the two types of cases namely, that in those cases sustaining a cause of action for fraudulently inducing a bigamous or other marriage duly solemnized in accordance with law but void or voidable for facts collateral to the solemnization, the gravamen of the wrong 'is not the unfulfilled promise of marriage and fraud and deceit in connection therewith but, rather * * * the fraudulent consummation of a marriage' impresses us as both elusive and unreal. As one commentator aptly observed, 'The plaintiff would appear to be as effectively unmarried and seduced in one case as in the other.' (Glasser, Torts, 1963 Survey of New York State Law, 15 Syr.L.Rev. 339, 343.) In both cases, the defendant is charged with taking affirmative fraudulent steps which result in damage to the plaintiff and, certainly, the circumstance that proof may be more easily obtained to establish the marriage ceremony in the case of a bigamous marriage can have no possible bearing on the sufficiency of a pleading.

Although we have come upon no case in this State involving a sham marriage ceremony, the few decided in other jurisdictions support the plaintiff's position that, with respect to an action for deceit, no distinction is to be made between a defendant's defendant's fraud concerning his capacity to marry and his fraud concerning the celebration of the marriage between the parties. (See Jekshewitz v. Groswald, 265 Mass. 413, 164 N.E. 609, 62 A.L.R. 525; Sears v. Wegner, 150 Mich. 388, 392, 114 N.W. 224; Alexander v. Kuykendall, 192 Va. 8, 12, 63 S.E.2d 746; see, also, Spellens v. Spellens, Cal.App., 305 P.2d 628, 641, mod. on other grounds 49 Cal.2d 210, 317 P.2d 613; Prosser, Torts (2d ed., 1955), p. 521; Note, 72 A.L.R.2d 956, 976, 981-982.) As we have already indicated, this seems to us plainly right. An innocent woman who is deceived into contracting a void marriage and who thereafter cohabits with her putative spouse in the performance of her supposed conjugal obligations is entitled to recover damages in an action for...