Supreme Court, Monroe County
11 N.Y.S.2d 611; 1939 N.Y. Misc. LEXIS 1767
March 31, 1939
LAPHAM, Justice. This is an action to annul a marriage for fraud
predicated upon the misrepresentation and concealment by the defendant
of a physical condition which made him incapable of begetting children.
An answer was interposed personally by the defendant but this was
withdrawn by his counsel when testimony to establish the right
of the plaintiff to a decree was given before me at Special Term.
The plaintiff and the defendant were married in April 1932 and
there has been no issue of the marriage. Before the marriage the
parties questioned each other about the health and the power of
each to bear and beget children. The plaintiff told the defendant
that she was perfectly normal and wanted children and the defendant
replied that there was no reason why they should not have a child.
At this time the defendant was suffering from a physical deformity
of his sexual organs which was linked to a disturbance of the pituitary
gland. The defendant had known of this condition at least in its
exterior manifestation for years. The disorder deprived the defendant
of the power to reproduce although it did not interfere with normal
sexual intercourse. The defendant was silent about this physical
condition of which he had been aware since his youth.
A few years passed and no children came. In June 1937 the plaintiff
and the defendant consulted a doctor together. The doctor found
the wife normal and healthy in every respect but found that the
defendant was incapable of begetting children. The doctor advised
an operation and treatments in an effort to effect a cure. The
plaintiff was willing to live with the defendant if the operation
could correct the defendant's physical disability. Neither the
operation nor the treatment was successful and on November 4, 1937,
the doctor informed the defendant that his condition was incurable.
As soon as the plaintiff learned of the futility of expecting any
change in her husband's condition she left him and since that time
has not cohabited with him. She testified that she would not have
consented to the marriage if she had known of the defendant's physical
Neither statute nor decision has ventured to define the fraud
sufficient to support a decree of annulment. The criterion of such
fraud has, however, been tersely expressed by Judge Crouch in general
terms in Shonfeld v. Shonfeld, 260 N.Y. 477, at pages 479 and 480,
184 N.E. 60, at page 61:
'The statute is silent as to what constitutes fraud. The Legislature
perhaps adopted the traditional attitude of equity, which has ever
refused to define, lest the craft of man evade the definition.
Lawley v. Hooper, 3 Atk. 278. The court is left free to meet each
case as it arises and to apply to the defendant's conduct the immemorial
test of fair and conscientious dealing. But fraud alone is of no
avail unless followed by the statutory consequence that consent
to the marriage was given by reason of it. At this point one encounters
the interpretation placed upon the statute by this court in Di
Lorenzo v. Di Lorenzo, 174 N.Y. 467, 67 N.E. 63, 63 L.R.A. 92,
95 Am.St.Rep. 609. Not every fraud by reason of which the particular
individual may have given consent to the marriage is an adequate
basis for annulment. On the other hand, the fraud need not necessarily
concern what is commonly called the essentials of the marriage
relation -- the rights and duties connected with cohabitation and
consortium attached by [**4] law to the marital status.
Di Lorenzo v. Di Lorenzo, supra; Beard v. Beard, 238 N.Y. 599,
144 N.E. 908; Domschke v. Domschke, 138 App.Div. 454, 122 N.Y.S.
'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, 174 N.Y. at
page 471, 67 N.E. 63, 64) [63 L.R.A. 92, 95 Am.St.Rep. 609], and
is 'of such a nature as to deceive an ordinarily prudent person.'
[Di Lorenzo v. Di Lorenzo, 174 N.Y. at page 474], 67 N.E. 63, 65
[63 L.R.A. 92, 95 Am.St.Rep. 609].'
In deference to this general principle the courts have annulled
marriages where there has been either an affirmative misrepresentation
of freedom from disease or a suppression and concealment of the
existence of a disease or of an unhealthy physical condition that
was particularly grave and serious. Svenson v. Svenson, 178 N.Y.
54, 70 N.E. 120 (suppression of existence of venereal disease);
Lapides v. Lapides, 224 App.Div. 257, 229 N.Y.S. 745, reversed,
254 N.Y. 73, 171 N.E. 911, on ground that the evidence did not
support allegations of fraud (concealment of Epilepsy); O'Connell
v. O'Connell, [**5] 201 App.Div. 338, 194 N.Y.S. 265
(representation that defendant was not addicted to drugs); Jacobson
v. Jacobson, 207 App.Div. 238, 202 N.Y.S. 96 (representation of
freedom from disease); Sleicher v. Sleicher, 251 N.Y. 366, 373,
167 N.E. 501 (concealment of mental disorder); Leventhal v. Liberman,
262 N.Y. 209, 211, 186 N.E. 675, 88 A.L.R. 782 (representation
of good health and concealment of tuberculosis and drug habit);
Sobol v. Sobol, 88 Misc. 277, 150 N.Y.S. 248 (concealment of tuberculosis);
Yelin v. Yelin, 142 Misc. 533, 255 N.Y.S. 708 (tuberculosis); Meyer
v. Meyer, 49 How.Prac. 311 (concealment of uterine disorder).
Judged in the light of these principles and adjudications the
representation and silence of the defendant on his physical condition
struck at the very nerve and root of the marriage contract. Every
woman perhaps who is about to be married longs for children of
the marriage but here the plaintiff revealed that her longing was
the moving cause behind her consent to the marriage. Over and beyond
this hope and this instinctive longing, however, stands the public
interest which attaches to every contract of marriage and which
demands that the marriage shall be fruitful. Sterility can be a
public as well as a personal tragedy.
In Mirizio v. Mirizio, 242 N.Y. 74, 150 N.E. 605, 44 A.L.R. 714,
Chief Judge Hiscock emphasized the extent of the public interest
in the birth of children and said, 242 N.Y. at page 81, 150 N.E.
at page 607, 44 A.L.R. 714: 'The mere fact that the law provides
that physical incapacity for sexual relationship shall be ground
for annulling a marriage is of itself a sufficient indication of
the public policy that such relationship shall exist with the result
and for the purpose of begetting offspring.'
The same considerations of public policy lay at the heart of the
decision in Coppo v. Coppo, 163 Misc. 249, 297 N.Y.S. 744. In that
case the defendant promised to have children if the plaintiff would
marry her. In reliance on this promise the plaintiff married the
defendant. For a time after the marriage the defendant insisted
on the use of contraceptives and finally told the plaintiff that
she did not intend to have any children and that at the time of
making such promises she had no intention of fulfilling them. On
these facts the Court granted an annulment of the marriage. And
in Kronman v. Kronman, 247 App.Div. 186, 286 N.Y.S. 627, the Court
clearly intimated that the fraudulent concealment by the defendant
that she was suffering from a disease which made her sterile would
be adequate ground for an annulment if the plaintiff would not
have given his consent if he had known of the existence of such
The conduct of the defendant here did not meet 'the immemorial
test of fair and conscientious dealing.' Shonfeld v. Shonfeld,
supra. The failure of the defendant to reveal his physical condition
was a violation of the duty of frank and open disclosure which
the relationship of the trust and confidence existing between persons
contemplating marriage laid upon him. Smith v. Smith, 112 Misc.
371, 184 N.Y.S. 134; Weill v. Weill, 104 Misc. 561, 172 N.Y.S.
589; Truiano v. Truiano, 121 Misc. 635, 201 N.Y.S. 573; Costello
v. Costello, 155 Misc. 28, 279 N.Y.S. 303.
In Smith v. Smith, supra, the duty of revealing the existence
of facts that might influence the decision of either party to enter
into an irrevocable contract of marriage was outlined by the Court
in these words, 112 Misc. at page 374, 184 N.Y.S. at page 136:
'Marriage being a mutual and voluntary compact, based on mutual
regard and affection, to live together as husband and wife as long
as both shall live, a confidential relationship exists between
those contemplating marriage that demands frankness and truthfulness
as to all facts that would affect the decision of either party.
Persons who have agreed to marry owe an affirmative duty to inform
each other of all facts material to their contemplated marriage,
not alone because such facts may affect the decision of the contracting
parties, but the state and community has an interest by reason
of the property rights involved and the possible issue of the union.
And if either party is unfitted by age, physical condition, mental
incapacity, or legal disability from being joined in lawful wedlock,
that party should not remain silent; there is a clear duty to speak,
as such facts are of the very essence of the contract of conjugal
union. Silence implies marriageability.
'A confidential relationship exists between persons who contract
to marry, and, occupying such positions toward each other, concealment
of material facts may be fraud. The suppression of the truth, when
there is a duty to speak, is a fraud. Smith, Frauds, § 9.
There is a legal and moral obligation to communicate or disclose
facts material to the contemplated marriage.'
In the present case the duty of making a full and complete disclosure
of vital facts was created not alone by the relationship between
the parties. The duty came alive on account of the plaintiff's
inquiry about the defendant's ability to beget children. A candid
and complete revelation of the defendant's defect was not only
invited but it was demanded by this inquiry.
There was more, however, than a concealment by the defendant of
a fact that was vital to the marriage contract. The defendant affirmatively
represented that there was no reason why he and the plaintiff should
not have a child. The failure to say explicitly that the defendant
had no physical disability does not destroy the fraudulent character
of the representation. The law does not stand here upon niceties
of word and phrasing. It condemns as fraudulent any statement that
creates a false impression by virtue of an intentional suppression.
Costello v. Costello, 155 Misc. 28, 279 N.Y.S. 303.
There is no evidence in the record that the defendant knew that
he was unable to beget children as a result of his physical defect
but a frank revelation of his condition would have led almost certainly
to a physical examination which would have uncovered the extent
and effect of his disability. If the defendant had told the plaintiff
what he already knew she might have been content to give her consent
to the marriage without insisting on a physical examination or
she might have refused her consent. In any event the defendant
could not deprive the plaintiff of information that would be vital
and even decisive in deciding whether to marry or not. The failure
of the defendant to disclose his physical infirmity took away from
the plaintiff the opportunity of making an intelligent decision.
It lulled her to sleep and built a deception out of which her consent
to the marriage was given.
The cases of Wendel v. Wendel, 30 App.Div. 447, 52 N.Y.S. 72,
and McGill v. McGill, 179 App.Div. 343, 166 N.Y.S. 397, affirmed
226 N.Y. 673, 123 N.E. 877, illustrate by contrast circumstances
where a decree of annulment was denied. In each case the decision
to marry was reached after a disclosure of all the relevant and
material facts likely to influence the giving or refusal of such
consent. In the Wendel case the defendant had had her ovaries removed
by an operation and expressed to the plaintiff doubt of her capacity
to conceive but the plaintiff persisted in his desire to marry
her in the face of this knowledge. In the McGill case the plaintiff
sought an annulment on the ground that the defendant had concealed
the fact that she was suffering from epilepsy. A friend had informed
the plaintiff of the defendant's infirmity and she herself had
invited the fullest inquiry into her condition by consent to a
It is as clear that the misrepresentation of the defendant was
calculated to deceive a person of ordinary prudence as that the
plaintiff would not have given her consent to the marriage if she
had known of the defendant's physical disability. The presentation
touched a subject which the defendant alone knew and which before
the marriage could not be confirmed or disproved by the plaintiff.
What the court said of the misrepresentation of the defendant in
Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 473, 67 N.E. 63, 65, 63
L.R.A. 92, 95 Am.St.Rep. 609, that the plaintiff was the father
of her illegitimate child may with equal cogency be applied to
the representation of the defendant in the present case. 'The plaintiff
had a right to rely upon the defendant's statement of a fact, the
truth of which was known to her and unknown to him, and he was
under no obligation to verify a statement to the truth of which
she had pledged herself. It was a gross fraud, and, upon reason,
as upon authority, I think it afforded a sufficient ground for
a decree annulling the marriage contract.'
The cohabitation of the plaintiff with the defendant before the
discovery of the fraud does not defeat her right to an annulment.
It is only cohabitation by the injured party with full knowledge
of the fraud that brings the prohibition of the statute into force.
Civil Practice Act, § 1139; Aufiero v. Aufiero, 222 App.Div.
479, 226 N.Y.S. 611; Licato v. Licato, 164 Misc. 105, 298 N.Y.S.
768; Rubman v. Rubman, 140 Misc. 658, 251 N.Y.S. 474.
In Rubman v. Rubman, supra, the Court said, 140 Misc. at page
670, 251 N.Y.S. at page 487: 'Where there is fraud going to the
essence of the marriage contract, it will not be validated by cohabitation,
unless at the time the innocent party knows of the fraud, when
such intercourse is said to be with marital intent and the contract
is then regarded as affirmed or ratified and therewith consummated.
There can be no consummation and marital status unless and until
the innocent party knows of the fraud, and the parties thereafter
have intercourse, or cohabit with marital intent.'
The evidence produced before me shows conclusively that the plaintiff
ceased to live with the defendant after she had learned that he
was sterile and that his sterility was incurable. Some hint of
the truth might have come to the plaintiff from the physical appearance
of the defendant during the marriage relationship long before consultation
with the doctor was sought. She testified, however, that in her
ignorance she did not know that the defendant was abnormal in any
respect. I have no reason to doubt her honesty or her good faith.
The situation must be judged in the light of the ordinary rules
of human conduct of a young woman of moral sensibilities. So considered,
the failure of the plaintiff to discover the defendant's infirmity
before the consultation with the doctor should not deprive her
of the relief which the other proven facts justify.
The bonds of marriage once assumed are not to be broken lightly
but the sanctity of the marriage must rest on a foundation of mutual
trust and confidence and not upon a deception which as here is
all pervasive. An annulment of this marriage will not trench upon
any vested interests or punish anyone except the offending party.
There are no children of the marriage and no troublesome questions
of support. Libman v. Libman, 102 Misc. 443, 447, 169 N.Y.S. 900;
Lewine v. Lewine, 170 Misc. 120, 123, 9 N.Y.S.2d 869.
There is evidence in the record that the physical disability of
the defendant affects his whole behavior. To compel the plaintiff
to continue to live with the defendant in marriage and to relinquish
all her hopes of children would be to perpetuate a tragedy which
cannot be wholly resolved but which may be undone in part. The
plaintiff is still a young woman and while in the full vigor of
her youth should be given a chance of shaping her life anew.
This conclusion does not come into conflict with the doctrine
enunciated by the line of authorities which hold that mere sterility
is not such physical incapacity as will justify an annulment of
the marriage. Lapides v. Lapides, 254 N.Y. 73, 171 N.E. 911; Kronman
v. Kronman, 247 App.Div. 186, 286 N.Y.S. 627; Schroter v.
Schroter, 56 Misc. 69, 106 N.Y.S. 22.
The present action is predicated on fraud and not on physical
The plaintiff is entitled to an interlocutory decree annulling
the marriage with the defendant.
The presumption of impotency has not been overcome and a decree
of nullity will be advised.