Riley v. Riley — 26 N.Y.S. 164

Majority

p. 164

(73 Hun, 575.)

RILEY v. RILEY.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Action to Annul Marriage—Evidence.

In an action to annul a marriage on the ground of physical incapacity-of defendant, evidence that, in due time after the marriage, defendant, gave birth to twins, is sufficient to sustain a judgment for defendant.

Appeal from special term, Westchester county.

Action by William Riley against Mary A. Riley to annul a marriage. There was judgment in favor of defendant, and plaintiff appeals.

Affirmed.

Argued before BARNARD, P. J., and PRATT, J.

Wm. Riley, in pro. per.

Thayer & Small, for respondent.

This action was brought to annul the marriage between plaintiff and defendant on the grounds that the defendant, at the time of the marriage, was physically incapable of contracting marriage; that such incapacity was known to her, but unknown to him, and was fraudulently concealed from him by the defendant. The parties intermarried on July 14, 1890, and cohabited together until shortly before this action was commenced, in June, 1892,—a period of nearly two years. They had twins born to them in February, 1892, about seven months after their marriage, one of which died on the night of its birth; the other, about three months later. This would seem to dispose of the question of defendant's want of capacity, unless plaintiff expected her to have triplets.

As to the other grounds alleged by plaintiff, it is sufficient to say they were not proven,—neither the incurable defects, nor their fraudulent concealment; and, even if proven, we know of no rule of law that will enable a husband to annul the marriage contract on the. ground that his wife has a swollen tongue, or inflammation of the bladder. We are satisfied that the" court at special term made a proper disposition of the case, and that the judgment should be affirmed, with costs.