MARY SZPUNAR DAMASKINOS vs. LEONARD A. DAMASKINOS.

COUNIHAN, J. This is a libel for an annulment of a marriage brought in the Probate Court. G. L. (Ter. Ed.) c. 207, Section 14. The case is here on an appeal from the dismissal of the libel. The evidence was not reported. The judge made a report of material facts, which may be summarized as follows: The libellant, domiciled in Fall River at the time of the marriage and when the libel was filed, was married to the libellee on December 6, 1946, at Brooklyn, New York. Almost immediately after the ceremony, the libellant learned for the first time, and from the libellee, that he was in difficulties with the immigration authorities and that he needed to show that he was married to prevent deportation to Greece. The libellee married the libellant to get out of trouble with the immigration authorities, and he refrained from telling the libellant of this because he was afraid she might refuse to marry him if she knew of it. She refused to live with him and shortly afterwards returned to Fall River. The parties never cohabited.

The Probate Court had jurisdiction of the libel since, although the marriage was solemnized out of the Commonwealth, the libellant was domiciled in the Commonwealth when married and when she brought this libel. G. L. (Ter. Ed.) c. 207, Section 14. Cohn v. Cohn, 310 Mass. 126, 129.

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It has been settled, with certain exceptions based on public policy not here applicable, that the law governing nullity of marriage is that of the place in which the marriage was entered into. Levy v. Levy, 309 Mass. 230, 233, and cases there cited. Craddock's Case, 310 Mass. 116, 122. It is the contention of the libellant here that the facts found by the judge require a decree of annulment of her marriage to the libellee under the law of the State of New York. The applicable New York statute is as follows: "A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: . . . 4. Consents to such marriage by reason of force, duress or fraud . . ." (emphasis supplied). Consol. Laws of New York 1930, c. 14, Section 7. See also Section 1139 of the civil practice act of New York. We may take judicial notice of the law of the State of New York. G. L. (Ter. Ed.) c. 233, Section 70.

The libel alleged, but the judge did not specifically find, that the libellant would not have married the libellee had she known of his purpose in marrying her. We think, however, that it ought to be inferred from the findings of the judge that the libellant would not have married had she known the reason why the libellee married her, and that she was induced to marry by his concealment of the purpose of the marriage and his deception.

We have examined the decisions of the courts of the State of New York, and they uniformly hold that fraud practised upon one of the parties to marriage by the other affords a ground for annulment of the marriage, particularly where the marriage was not consummated. And it was said in Hanson v. Hanson, 287 Mass. 154, 159, "The trend of the authorities is that annulment of an unconsummated marriage may be secured more readily than in a case where the parties have cohabited."

The two leading cases in New York are di Lorenzo v. di Lorenzo, 174 N. Y. 467, and Shonfeld v. Shonfeld, 260 N. Y. 477. In the di Lorenzo case there was an allegation that the husband's consent to marry was obtained by a fraudulent representation by the wife, before marriage, that

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he was the father of a child whom she exhibited to him. After discovery of this falsity, the husband left his wife and sought annulment. The court there said in decreeing annulment: "It is a general rule that every misrepresentation of a material fact, made with the intention to induce another to enter into an agreement and without which he would not have done so, justifies the court in vacating the agreement. . . . There is no valid reason for excepting the marriage contract from the general rule. . . . The minds of the parties did not meet upon a common basis of operation. The artifice was such as to deceive a reasonably prudent person . . ." (pages 472-473). In the Shonfeld case there was a misrepresentation of the "fortune" of one of the parties upon which the other party relied. There it was decided that what is fraud must be determined by the circumstances of each case, but "If the proof shows that the representations were of a nature to deceive an ordinarily prudent man who, but for the representations, would not have consented to the marriage, there is an adequate basis for a decree. The primary consideration in every case is the materiality of the representation viewed in the light of all circumstances by the mind, not of the individual plaintiff but of an ordinarily prudent man" (page 481). In Levy v. Levy, 309 Mass. 230, 236-237, a case involving a New York marriage, the court was of the opinion that the misrepresentation there alleged was not of a nature to deceive the ordinarily prudent man, and for that reason the libel was dismissed.

Here, however, the situation is different. There was no representation, the falsity of which could be discovered by an ordinarily prudent person, but rather a deception and concealment which so affected the consent of one of the parties at least as to make this marriage contract invalid under the laws of New York. New York domestic relations law, Section 10. Protopapas v. Protopapas, 47 N. Y. Sup. (2d) 460, 461. Siecht v. Siecht, 41 N. Y. Sup. (2d) 393, 395. Truiano v. Truiano, 121 Misc. (N. Y.) 635, 637. Laage v. Laage, 176 Misc. (N. Y.) 190, 195. The application

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of the law of New York to the facts found by the judge in this case requires a decree for annulment. The decree dismissing the libel is reversed, and a decree is to be entered for the libellant.

So ordered.