(dissenting):
The plaintiff, after living with the defendant as his wife for six years, now asks that the marriage be annulled on the ground that she procured his consent théreto by false and fraudulent representations ; that she was, at that time, the widow of one Manson, and that her child, then about six years old, was the offspring of her marriage with Manson, when in fact Manson and she, though living together, had never been married, and the child was born out of. lawful wedlock. His complaint was dismissed on the opening of thp trial on the ground that it did not set forth facts sufficient to *460constitute a cause of action. .This was the same thing as if the ..defendant had demurred ,to the complaint on that ground. The trial court granted the motion, which was nothing more than a mere nonsuit. Yet the decision filed by the court and the judgment entered thereon purported to dismiss the complaint “upon the merits.” On this appeal we may amend the judgment by striking but the, words “ upon the merits.” As to the sufficiency of the complaint, the question is at once novel, so far as'our decided cases go, and in the highest degree important, so far as the common life of our people is concerned. After some study, I feel justified in saying that I know of no well-considered case in this State or in England, or in fact in any part of this country, which has held that a marriage will be annulled on the claim of one of the parties, that the other had- made false representations ás to his or her previous chastity, which induced the complaining party to enter 'into the status. There are many well-considered authorities to the contrary, of which Mr. .Justice Jenks-cites several. Were' it not for the opinion of the Court of Appeals in Di Lorenzo v. Di Lorenzo (174 N. Y. 467) there would be little room even for debate on this question. Yet, as I see that opinion, it does not affect this precise question at all. Certainly, there was nothing decided in that case which necessarily controls the case now here. That court has told us frequently enough, what all- of us well know, though at times it be forgotten, that the general expressions in its opinions must be measured by the precise facts before it. In that case there had been a trial of the issues and the jury found the following facts: The plaintiff had. been induced to marry the defendant on false representations made by her that she had given birth to a child of which the plaintiff was the father; she exhibited the child to him, which was said to have been born during his absence from the ■State; believing her statements, and solely far the ¡purpose of legitimatizing his supposed offspring, he entered upon a ceremonial- marriage; he discovered thereafter that the child' in question was not only not his child, but not even his wife’s child, but was ih fact a spurious child, fraudulently palmed off upon him by the woman, who had never given birth to any child. The Court- of Appeals held that these facts constituted a gross fraud upon the plaintiff, which reached to and destroyed the *461very essence of his consent to the marriage, and that he was entitled to an annulment of the' marriage. Our statute (Dom. Bel. Law [Gen. Laws, chap. 48; Laws of 1896, chap. 272], § 10; since amd. by Laws of 1901, chap. 339; renum. § 5, and amd. by Laws of 1907, chap. 742, and revised into Dom. Bel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], § 10) declares the rule as follows: “Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of malting a contract is essential.” It will be noted that there is no attempt to define mar.riage as a civil contract except for the one specified purpose, and there-is no warrant for any larger statement. The same statute (§§ 2-4, as amd. by Laws of 1907, chap. 742), which lias been revised into the present act (§§ 5-7), classifies marriages as -void and voidable. While free consent is deemed essential to the inception of the relation of man and wife, the statute itself - recognizes and declares the existence of certain impediments in the way of a legal marriage which not even the free consent of the parties can overcome, and declares marriages, contracted in face of these impediments, void from the beginning. Such, for instance, are the impediments of consanguinity set forth in section 2 of the act of 1896 (as amd. by Laws of 1907, chap. 742) and in section -5 of the act of 1909. These absolute impediments are but few compared to the number which were enforced in-the ecclesiastical courts in England, and which,- to a greater or less degree, came from the provisions of the early canon law of the church. As to the marriages classified as voidable (§ 4, as revised into § 7), the impediments specified are to a large extent the same as those recognized in the canon law, and which, in fact, have been recognized in every civilized system of law relating to marriage since early Boman history. Among the impediments so declared as to “ voidable marriages ” is one where either party “ consents to such marriage by reason of force, duress or fraud.” (Dom. Bel. Law of 1896, § 4, as revised into Dom. Bel. Law of 1909, § 7.) These present statutory declarations are but re-enactments of the provisions on this subject found in the Be vised Statutes. (See 2 B. S. 138, § 1; Id. 139, § 2; rep. by Laws of 1830, chap. 320, § 24, and added by Laws of 1.887, chap. 24; 2 B. S. 139, § 3, as amd. by Laws of 1893, chap. 601; 2 B. S. *462139, §§ 4-6.)- The purpose of these enactments is quite clear. Though we took over our common law- and equity jurisprudence from England, we did noc take over the system of ecclesiastical courts, as we had no State church. In our changed system, wé distributed among our civil courts the various subject-matters which fell formerly within the exclusive jurisdiction of the ecclesiastical, courts, as for instance, marriages, wills, etc, ■ The statute as to marriages declared no radically new rule; it merely declared what was to be adopted and preserved from the old rules.
It is quite true that the Court of Appeals placed its decision in the Di Lorenzo case upon the ground that under our statutes mar-, riage is a civil contract, and must be annulled, on the complaint of the injured party, if it be entered into through fraud as to a material element of the consent. This rule, however, as before- indicated, is not different to that which applied in the ecclesiastical courts,, where marriage was deemed sacramental when entered into by baptized persons. The beginning of the relation even there was contractual, and implied free consent, for its inception. If this consent was procured by a material fraud, it was always held that the marriage could be annulled" on proper proof. What we call “fraud ” they call “error ” in regard, to matrimonial causes. We divide fraud into “ material ” and “immaterial.” We consider as “ material ” that which reaches the essence of the consent of the parties. The canonists divided “ error ” into “ error substantialis ” and “ error accidentalis.” “ Error substantialis ” was one that reached the essence of the consent and was- material to it, while “error accidentalis” arose where the fraud or mistake was inci-. dental rather than material. On the question of the necessity and freedom of consent both our own law, as applied in the Di Lorenzo case, and the canon law are. in full harmony. At the same time neither at canon law nor heretofore in equity has a mere representation as to previous chastity been considered as “ material,” or as producing “ error substantialis ” in the giving of the required consent for a valid marriage. -Nor do I think we should be justified in inferring from the decision of the Court of Appeals-in the Di Lorenzo case that it intended to declare any new rule on this question, bfor should we be swayed too much by the supposed logical deductions from the rule there declared. Law and logic should work *463together, but we know very well that they do not always keep equal ’step. Logie- exists independently of human habit or mode of thought, while law is but the reflection of human life and custom. Logic does not know expediency, while law seldom escapes it, for life is largely regulated by it.' The rule so frequently applied in the past, that courts will not.look behind the marriage on the question of previous chastity, rests largely upon human expediency. There is a wisdom of life, as well as a logic of law, and a working system of law must embrace both elements. The question is a delicate one, but, at the same time, a most practical one, which the world has been solving in its own way for many centuries.
It should not be supposed that there is any analogy between the question here considered and the one-time rule in Roman law, quoted by Hr. Justice Jerks from Montesquieu, that an impediment to legal marriage existed as to a woman who had- led “ a disorderly life.” The rule is found in the “ Fragments of Ulpian,” and is taken from the “ Lex Julia,” which was an edict of Augustus aimed at a condition of society then existing. It forbade senators, and later, free men, from marrying common prostitutes. It was directed not against a woman who had simply been unchaste, and in that sense “ disorderly,” but against those who marketed their bodies. Even this legal impediment was not continued by Justinian in the Institutes, or Pandects, aud is not to be found in any system of jurisprudence since existing. If the rule, contended for so forcibly and so elegantly by my brother Jenks, is to find its way into our system of jurisprudence, I presume it will be necessarily of equal application regardless of sex. If so, we may well recall the opening of Pandora’s box.
For the reasons above given, I vote to modify the judgment by striking therefrom the words “upon the merits,” and to affirm the , judgment as so modified. • ,
Burr, J., concurred in separate memorandum.