(dissenting):
I dissent. By this appeal we are practically asked to sanction a scheme by which a woman, who had been previously convicted at the Court of Special Sessions in the city of New York of keeping a disorderly house, induced the plaintiff to marry her On the false representation that he was the father ,of an illegitimate child of which .she had been delivered, when in fact no such, child had been born. The motive of the defendant’s scheme may possibly be found in the fact that the plaintiff was worth $65,600.
The plaintiff had been living in illicit relations with the defendant ¡at," before and after the time when the conception of a child might have taken place. The woman' represented that a child was born on' October 5, 1891. From May, 1890, till April, 1891, the parties had been continuously cohabiting. Consequently it was not strange that the plaintiff was induced to believe the false representation that he was the father of the child. I concede that if it had been the fact the plaintiff could not obtain an annulment of the marriage for that cause.
In Scott v. Shufeldt (5 Paige, 43) the court annulled a marriage between white persons where similar facts existed except that a child was actually born which the husband afterward discovered to be ai mulatto and consequently the child of a negro. The chief difference between that case and the case at bar is the fact that in the present .case no child was born. We are, therefore, asked to say that when the woman exhibits to the man a child which she represents to be the fruit of their- illicit cohabitation, when in fact no such child has been born, and threatens to institute bastardy procéedings against him, thus necessarily declaring her readiness-and intention to *521enforce her threats by perjury in swearing that he is the father of the child, and by these means compels a marriage, such marriage is not induced by “ force, duress or fraud ” under section 1743 of the Code of Civil Procedure. I think it is and that we should not render any judgment which in the slightest degree might be construed as an approval of such a wicked prostitution of the very essence of the marriage contract.
I vote for affirmance of the judgment.
Judgment reversed and new trial granted, costs to the appellant to abide the final award of. costs.