writing for a unanimous court in Di Lorenzo v. Di Lorenzo (174 N. Y. 472) says : “While, then, it is true that marriage contracts are based upon considerations peculiar to themselves and that public policy is concerned with the regulation of the family relation, nevertheless, our law-considers marriage in no other light than as a civil contract. (Kujek v. Goldman, 150 N. Y. 176.) The free and full consent, which is of the essence of all ordinary contracts, is expressly made by the statute necessary to the validity of the marriage contract. The minds of the parties must meet in one intention. It i-s 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. It is obvious that no one *456would obligate himself by a contract, if he knew that a material. representation, entering into the reason for his consent, was untrue., There is no valid reason for excepting the marriage contract from the general rule.” And also declares, after quoting from and citing Code of Civil Procedure (§ 1743, subd. 4, and § 1750) : “ This language is broad and warrants but the one reasonable-construction, that the fraud must be material, to that degree that, had it not been practiced, the party deceived would not have consented to the marriage.”
I think, then, that under the authority of Di Lorenzo's Case (supra) the soundness of the proposition of the Special Term must be determined by answering the question whether, as matter of law such a false representation, can be material to that degree that, had it not been practiced, the party deceived would not have consented to the marriage. It may be said that in our civilization a man assumes that his proposed wife is chaste and that without reason he would hot pay her the insult of query as to her virtue. But I can conceive of a case where a man before consenting to a contract of marriage might -aslc such a question of the woman outright, and rely upon her. answer. Or the case at bar is an instance where the circumstances might compel some representation in explanation of them. It is quite true that such a representation is not as to the essentialia of the marriage contract, for previous chastity, is not a- necessary qualification for cohabitation or for the full discharge of the duties of consortium. But it seems to me that the question is whether such representation may not be as to a fact material to the consent of , the other party to make the contract. Cannot a m’an regard chastity as an essential qualification of the woman he proposes to marry, and be unwilling to take evén: an Aspasia to his bed and board? In Di Lorenzo's case the misrepresentation was that a child .was the issue of the illicit relations of the parties. That representation could not strike at the essentialia of marriage, and yet the court-profiounced it material,saying: “In this case, the representation of the defendant was as to a fact, except f.or the truth of which the necessary consent of the plaintiff would not have been obtained to the marriage. It was designed to create a state of mind in the plaintiff, the operation of which would be to yield a consent to marry the defendant, in the belief that lie was rectifying a great wrong. *457The minds of the parties did not meet upon a common basis of operation. The artifice was such as to deceive á reasonably prudent person and to appeal to his sense of honor and of duty. The plaintiff had a right to rely upon the defendant’s statement of a fact, the truth of which was known to her and unknown to him, and he was under no obligation to verify a statement, to the truth of which she had pledged herself. It was a gross fraud and, upon reason,, as upon authority, I think it afforded a sufficient ground for a decree annulling the 'marriage contract.” Thus we have the principle enundated that the materiality goes to the consent to the contract and need not strike at the capacity to make the contract and to perform it. A man is not presumed to contract for marriage simply upon the basis of physical ability of the woman for cohabitation, for consortium implies much more. And if a man consent to contract to marry a woman who falsely represents herself as chaste and yet marries her who has been unchaste, he may thereby be induced to agree to a contract which necessarily requires personal performance by one who is of a different status than he was led to believe. The bad character of the plaintiff or his or her lascivious conduct is a defense to a breach of promise action, (Palmer v. Andrews, 7 Wend. 142; 2 Pars. Cont. [8th ed.‘], bottom paging 69, citing authorities.) That author also says (p. 71): “ It has been said, also, that if a widow conceals her previous marriage, and Betrotlis herself as a virgin, this would be a fraud, and would avoid the contract. It is going quite far to consider this fact alone as constituting a fraud, but it could seldom occur but under circumstances which would probably determine the character of the concealment; and if this were fraudulent, it must of. course have the usual effect of fraud upon the contract; for if obtained by fraud, whatever that fraud may be, the contract is void.” I cite this principle as bearing on the' question of materiality. Bigelow on Fraud (Vol. 1, p. 497) says: “ In the next place the representation must have been material ; that is, it 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. Still a party who, has effected his purpose through a misrepresentation cannot deny its materiality,” citing case's. Parsons on Contracts (Vol. 2 [8th ed.], p. 895) writes: “ But, as before, we *458must say that there is no positive standard by which to determine whether the.fraud- be thus material or not. .¡Nor can- we give a better rule- for deciding the .question than this : if the fraud bé such that, had' it not been practiced,'the contract would not have been made, or the transaction completed, then it is material to it; but if it be shown or made probable that the same thing would have been done by the parties, in the same way, if the fraud' had not been' practiced, it cannot be deémed material.” (See, too, Valton v. National Fund Life Assurance Co., 20 N. Y. 32, 37; Canham v. Barry, 15 C. B. 597.) .If one would go so far as to say that a man yrould or would not be led to give or withhold consent to the contract of marriage ilpon the single consideration whether the woman, was chaste or unchaste, the answer is that it is not necessary that the false representation should be the sole inducement'. (Pom. Eq. Juris, [3d ed.], § 890; Kerr Fraud & Mistake [1st Am. ed.],-74.)
I think, then, that such a misrepresentation can afford ground for the annulment of a marriage for'fraud because, as matter of law, it can be materiabupon the question of consent, which is essential to the contract of- marriage. To reach any other'conclusion is to say in effect that the fact that the woman, otherwise acceptable, is unchaste cannot be-sufficient motive for a man of average intelligence and prudence to refuse consent to marriage. This doctrine would put a Gyprian on.the marriage plane of a virgin, and makes no distinction in respect to virtue-as between a woman who had been a mistress and one who had been a wife.
I cannot perceive that the question is- affected by the circumstance that the marriage was consummated; for- the sole relation, of tlie false representation, as viewed by -the law, is to the consent to contract of marriage, and the sole limitation to the action, as pointed out in Di Lorenzo's Case (supra) is voluntary cohabitation subsér quent to the full knowledge of the facts. This court' must decide this question . upon- the law as. declared by our statute and as expounded by our highest court. That- court has well said in Kujek v. Goldman (150 N. Y. 182): “While it is not agreeable to treat.a subject of sacred importance upon, this narrow basis; it is necessary to do so, for our law considers marriage in no other light than as a civil contract.” My conclusion is .that the alleged false misrepresentation can be material in such án action and, therefore, *459may be material in this action. There is nothing more to decide upon the record of this appeal. I advise that the judgment be reversed and that a new trial be granted.