The action is to annul a marriage for fraud. "Marriage," says the statute (Dom. Rel. Law; Cons. Laws, ch. 14, § 10), "so far as its validity in law is *Page 479 concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential." So it was, too, before the statute was enacted. (Ferlat v.Gojon, 1 Hopk. Ch. 478.) The essentials of marriage as a civilcontract are, therefore, (a) consent by (b) parties having statutory capacity to give it. Any lack in those essentials makes the marriage void (Dom. Rel. Law, §§ 5 and 6) or voidable (Id. § 7). If either party consents by reason of fraud there is no reality of consent. Hence the marriage is voidable (Id. § 7, subd. 4) and an action may be maintained to annul it. (Civ. Pr. Act, § 1139.) While the jurisdiction of the court to annul is purely statutory (Walter v. Walter, 217 N.Y. 439) it is equitable in its nature (Cf. Bays v. Bays,105 Misc. Rep. 492, 500), particularly where fraud is charged. (Cf. Ferlat v. Gojon, supra; Fisk v. Fisk, 6 App. Div. 432.) 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). 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 law to the marital status. (di Lorenzo v. di Lorenzo, supra; Beard v. Beard,238 N.Y. 599; Domschke v. Domschke, 138 App. Div. 454.)
Any fraud is adequate which is "material, to that degree *Page 480 that, had it not been practiced, the party deceived would not have consented to the marriage" (di Lorenzo v. di Lorenzo,supra, p. 471), and is "of such a nature as to deceive an ordinarily prudent person." (Id. p. 474.)
With so much premised, we turn to a consideration of the case at hand. The action was undefended. Plaintiff testified that for some years prior to the marriage he had been keeping company with the defendant. On several occasions when the question of marriage was brought up by the defendant, the plaintiff had stated plainly that he was in no position to marry because he was not able to make a living; that he was working on and off with his father without a regular salary and just managed to keep himself going. In May, 1930, the subject was again broached by the defendant, who suggested that if it was merely a matter of sufficient money to establish him in a business of his own, she had enough, if such an opportunity presented itself. A month later there came such an opportunity. An acquaintance, aware that the plaintiff desired to go into business, suggested a partnership in a jewelry store to be leased in the Hotel McAlpin, in the city of New York. Seven thousand dollars was required. The acquaintance was able to contribute only $1,500, or $2,000. The defendant was made acquainted with this and she told the plaintiff that she had $8,000 which would be available. From that point on she took part in the discussions with respect to the proposed business and approved the partnership arrangements and the plans of the store. A lease of the store was to be closed on July 21. Before the execution and delivery of the lease, a deposit by way of security was required. The defendant refused to furnish any money before marriage. There was a civil marriage on July 15. It was not consummated. Each party returned to the parent's home where each lived. On July 19 the plaintiff went to defendant's home to secure the amount of the required deposit on the lease. He then discovered that the defendant did not have and *Page 481 never had had any such money or the means of getting it. The trial court found as facts that the representations thus made were false, were believed and relied upon, did induce the plaintiff's consent to the marriage, and that if they had not been made he would not have consented. A decree was refused upon the ground that the representations did not go "to the essence of the marriage contract."
For reasons stated above, the ground of the decision is untenable. 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. To be material, the representation "must not only have induced the action taken, it must have been adequate to induce it by offering a motive sufficient to influence the conduct of a man of average intelligence and prudence." (1 Bigelow on Fraud, 497.) Present in every case as a circumstance which such a mind would necessarily consider is the important and irrevocable nature of the contract of marriage, affected, as it is, with a public interest and with resultant rights and duties unalterably fixed by law. The trier of fact in testing materiality by this objective standard on such a background is no doubt justified in rejecting, as immaterial, representations which in the case of other types of contract might lead to a different conclusion. Generalizations other than these may not be made. The boundaries of materiality must be pricked out by individual decisions. The question here is whether it can be said as matter of law that the representations made by defendant were not material. The Appellate Division by a divided court has in effect so said. We reach the opposite *Page 482 conclusion. The obligation of a husband to support a wife is no less lightly to be entered into than the other obligations of the marital relation. The ability to support is correspondingly important. While plaintiff's attitude may have been something less than heroic, realization of the responsibilities of marriage need not be condemned as sordidly mercenary. The business which defendant's mythical money was to establish was plaintiff's only prospect of supporting her. The misrepresentation was not a mere exaggeration or misstatement of her means or prospects, which might or might not be an incentive to marriage. It was a definite statement of an existing fact without which, as defendant clearly understood, no marriage was presently practicable. It cannot be said as matter of law that either reliance or materiality hang upon an unreasonable or whimsical attitude on plaintiff's part. No public policy outlaws a marriage settlement agreement (cf.Piper v. Hoard, 107 N.Y. 73; Kujek v. Goldman, 150 N.Y. 176,182) and no public policy demands that prudent consideration of ability to fulfill the duty of support shall not have a legitimate place in the determination by a party of whether or not to marry.
The judgment of the Appellate Division and that of the Special Term should be reversed and an interlocutory judgment of annulment directed in favor of plaintiff.