The gravamen of the action is that the defendant falsely and fraudulently represented to the plaintiff that she loved him sufficiently to marry him and to leave her home and family in Rumania and come to live with plaintiff in America; that such representation was not true and made with intent to deceive and defraud plaintiff and to induce him to marry the defendant, in order that she might gain admission to this country by means of preferential visa.
The plaintiff’s evidence, if believed, was ample to sustain the cause of action. Plaintiff’s conduct subsequent to the marriage clearly evinces the fullest reliance by him upon the defendant’s representations. Following his return to the United States he contributed in excess of $500 towards the defendant’s support and the expense necessary to bring her to New York. He rented and furnished an apartment and put it in readiness to receive the defendant upon her arrival.
Concededly, the parties separated a few hours after the defendant arrived. The cause for the separation was the chief issue for determination by the learned justice at Special Term. He had opportunity to see, hear and observe the demeanor of the witnesses before him, and his findings in favor of the plaintiff may not lightly be disturbed. The responsibility for determining where *180the truth lay rested upon the trier of the fact, rather than upon this appellate' tribunal. As was recently said by the Court of Appeals in Boyd v. Boyd (252 N. Y. 422, 429): “ In a case so close as this, let the court of first instance decide. Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. * * * How can we say the judge is wrong? We never saw the witnesses. * * * To the sophistication and sagacity of the trial judge the law confides the duty of appraisal. If these witnesses imposed upon the credulity of an experienced fact finder, this court cannot correct him. His was the opportunity, the responsibility and the power to decide.”
In my view the probabilities were entirely with the plaintiff. It is inconceivable that after such an expenditure of money and effort upon his part he would have cast off the defendant and driven her from the apartment which he had prepared as their home, for the reasons advanced by the defendant. Far more probable is the plaintiff’s explanation for the parting that resulted so soon after the defendant’s arrival. The justice at Special Term was warranted in finding that the defendant had accomplished her design when she reached New York. If this were so, it is not unreasonable for the defendant immediately to have given notice to the plaintiff that she would have nothing further to do with him. Her guilty conscience and the knowledge that she was required to make confession of her guilt offered sufficient explanation for her excitement and hysteria.
True it is that the marriage was consummated in Rumania. While consummation in cases of annulment is a matter to be considered and one that under appropriate circumstances may influence the court in its decision, it still remains that it is the consent and not the consummation or cohabitation which is the important part of the contract of marriage. In the case before us there is no question of public policy involved because of the consummation. The consummation and cohabitation were had only while the parties were living abroad. Such was but one of the fraudulent acts perpetrated by this defendant to attain her end.
The plaintiff was not required to rely wholly upon the testimony of himself and his relatives. That the defendant intended an ultimate separation from him finds support in the evidence of the witness Nemet, who visited the defendant’s family in Rumania after the plaintiff had returned to New York. In a conversation had with the defendant’s mother in the presence of the defendant, *181the former inquired about the laws governing American divorce, and whether or not it was difficult to obtain a divorce here. While the witness testified that the defendant appeared to protest against the line of inquiry conducted by her mother, the justice at Special Term might well have drawn the inference that the inquiry was made for the defendant’s benefit.
The judgment here is not based upon defendant’s admission solely, but upon all the facts and surrounding circumstances. Here, separation from the plaintiff was an accomplished fact within a few hours after her arrival in New York. Her explanation for the cause was not binding upon the trial justice, who had a right to disbelieve the defendant and accept the plaintiff’s explanation. Moreover, this was a contested issue and not a default judgment.
The case is clearly distinguishable from the authorities cited in the prevailing opinion. (Schaeffer v. Schaeffer, 160 App. Div. 48; Griffin v. Griffin, 122 Misc. 837; affd., 209 App. Div. 883.) Here the plaintiff desired to marry one who would return with him to America and live with him here. He was much older than the defendant and it was quite natural that he would be apprehensive lest she would consent to marry him for an ulterior motive, namely, to seek preference under the Immigration Law to which she would be entitled as plaintiff’s wife. With this in mind the plaintiff made specific inquiry as to the defendant’s real attitude towards him and was assured by her that she was marrying him because of her love for him and not for the purpose of gaining admittance to the United States. The justice at Special Term was wholly warranted in finding that a deliberate fraud was practiced upon the plaintiff and upon all the evidence was fully justified in granting this decree of annulment.
I, therefore, vote for affirmance.
Townley, J., concurs.
Judgment reversed, with costs, and complaint dismissed, with costs. Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of facts proved upon the trial as are necessary to sustain the judgment hereby awarded.