de Baillet-Latour v. de Baillet-Latour

Desmond, J. Of the three alleged causes of action .pleaded in the complaint in this action for annulment of a marriage, two have been dismissed below, and are out of the case. There remains the first cause of action only, which charges defendant with fraud (see Civ. Prac. Act, § 1139; Domestic Relations Law, § 7) in that he, it is alleged, induced plaintiff to marry him, [431] by falsely representing to her that he would cohabit with her and perform the customary duties of the married state, whereas, it is alleged, he never intended to carry out those promises and in fact failed and refused, after marriage, to fulfill them. The trial court believed the testimony of plaintiff (which was supported by some circumstantial evidence to which we will refer) that defendant refused to have, and never did have, sexual intercourse with her. The trial court thereupon made findings that this refusal by the husband was in pursuance of his premarital fraudulent intent not to perform the marital act, and granted a judgment of annulment, which has been affirmed by the Appellate Division, and is now before us by leave of the Appellate Division. The only point argued to us by defendant-appellant is as to the alleged legal insufficiency of the proof on which this marriage has been declared to be void. This court is, of course, without any power to review the weight of evidence or to pass on the truthfulness of the witnesses. If the evidence makes out a prima facie case for annulment under New York law, we must affirm. A determination as to the sufficiency of the proof here requires us to answer three questions: first, was there evidence as to each of the requisite elements of the fraud; second, is section 1143 of the Civil Practice Act applicable here; and third, if section 1143 be applicable, were its requirements satisfied here? We give an affirmative answer to each of those queries. Plaintiff, to make out the fraud alleged, had to prove a premarital representation by defendant that he intended to perform the duties of the married state, that the representation was willfully false and that plaintiff relied thereon in consenting to marry defendant. As to the making of such a representation, we have here not only the traditional implication thereof from the very entry into the marriage contract (Moore v. Moore, 94 Misc. 370, 373; Coppo v. Coppo, 163 Misc. 249, 256; see Mirizio v. Mirizio, 242 N. Y. 74, 81), but we have more, since plaintiff testified to premarital statements and attitudes of defendant which could be construed as promises of a normal marriage relationship. Such a false statement of intent was a statement of material, existing fact (see Adams v. Gillig, 199 N. Y. 314, 322), and concealment of a contrary intent was fraudulent (Svenson v. Svenson, 178 N. Y. 54, 57). The falsity [432] of that representation could be inferred (taking plaintiff’s testimony as true, as we must on this appeal) from defendant’s refusal at any time to have sexual intercourse with plaintiff, and from his several explanations of his reasons therefor. Plaintiff, according to her, relied on that false representation in consenting to marry defendant, and brought this suit only when she became convinced that defendant had never intended to perform. Thus there was testimony, taken as true by both courts below, of each of the essential ingredients of fraud. The second question of law here presented is as to the applicability, to this case, of section 1143 of the Civil Practice Act: “ § 1143. Proof required for judgment by default in action to annul a marriage. In an action brought to annul a marriage, a final judgment annulling the marriage shall not be rendered by default for want of an appearance or pleading, or upon a trial of an issue, without proof of the facts upon which the allegation of nullity is founded. The declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced.” At first glance, that statute, from its heading and from the word “ default ” in its first sentence, might seem to confine itself to undefended cases, and this lawsuit was vigorously defended. However, we have concluded from the section’s history and from decisions applying it, as well as from investigation as to its purpose, that its meaning is this: the first sentence forbids the grant of an annulment judgment solely by reason of default in pleading or appearance, but requires proof, and the second sentence states the rule as to what that proof must consist of. The historical basis for that conclusion is set out in Judge Froessel’s opinion here. We add this: section 1143 of the Civil Practice Act, as it now stands, is identical, except for slight grammatical alterations, with the first two sentences of old section 1753 of the Code of Civil Procedure. The heading of section 1753 was “ Certain proceedings regulated in action to annul marriage ”, and the word “ default ” did not appear in that heading. When the Code of Civil Procedure was revised into the Civil Practice Act the revisers recommended a new section 1157 of the Civil Practice Act, which, as finally numbered, became the present section 1143 of the Civil Practice Act. The 1919 report of the Joint Legislative Commission on Simplification of Civil Practice (N. Y. Legis. Doc., 1919, No. 111) [433] states that the new Civil Practice Act section is the same as the old code section “ without change of substance ”, but, unfortunately perhaps, the revisers put the word “ default ” into the heading. However, especially in the ' light of the historical matter given by Judge Froessel in his opinion, it seems plain that what the old section and the new section meant was that annulments could not be granted by default, but that there must be proof and that the proof must contain satisfactory evidence in addition to the declarations or confessions of the parties, a requirement as to proof which would be applicable whether or not the defendant contested the case. Going further back into statutory history, we find that section 1753 of the old code was drawn, in part, from Revised Statutes of New York, part II, chapter VIII, title 1, section 36, which read as follows: “ No sentence of nullity of marriage shall be pronounced solely on the declarations or confessions of the parties, but the court shall, in all cases, require other satisfactory evidence of the existence of the facts, on which the allegation is founded.” For many years this statutory mandate has been held, or assumed, to control contested, as well as noncontested, annulments (Hall v. Hall, 139 App. Div. 120, 123; Feig v. Feig, 232 App. Div. 172; Gabriel v. Gabriel, 274 App. Div. 141; see Lyon v. Lyon, 62 Barb. 138). One of the purposes of these enactments was, undoubtedly, to prevent collusion by demanding that there be evidence from persons other than the parties. However, collusion is possible in an ostensibly contested case as well as in a default. We conclude that the second sentence of section 1143 governs all annulment actions, and that it requires, in all annulment actions, other proof in addition to the “ declaration or confession of either party ”. Our last inquiry, then, is as to whether the present record contains, in addition to such declarations or confessions, ‘ ‘ other satisfactory evidence of the facts ”. Plaintiff gave evidence as to all the essential elements of fraud, and her son corroborated her as to certain admissions, or “ confessions ”, made by defendant. The “ other proof ” pointed to by plaintiff consisted of this: defendant, who insisted that he had had normal physical relations with his wife on many occasions, was asked whether she had any conspicuous scars on her body, which he denied. The existence of such scars was then demonstrated. [434] That, of course, was not proof of defendant’s fraudulent intent. It did no more than impugn defendant’s truthfulness, without in itself proving or disproving his asserted cohabitation with his wife. However, it seems to us, that it was, in the meaning of section 1143 “ other satisfactory evidence of the facts ”. That language must be construed according to its purpose and, so construed, it requires only that there be in the record, in addition to “ declarations ” or “ confessions ” of the parties, other material from other sources, substantial and reliable enough to satisfy the conscience of the trier of the facts (see Winston v. Winston, 165 N. Y. 553, 556, 557, affd. 189 U. S. 506). It follows that the requirements of the second sentence of section 1143 were met by the proofs offered by plaintiff on the trial of this case. All of the judges of this court deplore the indiscriminate granting of annulments on insubstantial grounds or flimsy “ proof ’ ’. But here there was evidence, accepted by the courts which have power to pass on the facts, of a deliberate fraud as to a fundamental of marriage. “ * * * the refusal of husband or wife without any adequate excuse to have ordinary marriage relations with the other party to the contract strikes at the basic obligations springing from the marriage contract when viewed from the standpoint of the State .and of society at large ” (Mirizio v. Mirizio, 242 N. Y. 74, 80-81, supra). Even canon law, strict as it is as to the indissolubility of marriages, grants decrees of nullity in cases such as this (see Woywod, Practical Commentary on the Code of Canon Law, p. 654; Woywod, The New Canon Law, p. 219; Ramstein, Manual of Canon Law, p. 443). The judgment should be affirmed, with costs.