This is an action for an annulment on the ground of fraud.
The fraud allegedly perpetrated was a promise on the part of the husband to embrace the Catholic faith without any intention of doing so, to gain the plaintiff wife’s consent to the marriage. The allegation is a material one. To one truly religious and a devout communicant of a religious faith, it would be a matter of transcending importance, overshadowing any material considerations. If such an allegation can be supported by proof and the wife shows that upon the discovery of the said fraud she *307left her husband’s bed and board and refused thereafter to be a wife to him, she is entitled to an annulment of the marriage. But in a marriage, as in an ordinary contract, a fraud may be waived and one who continues after knowledge of the fraud to accept the benefits of the contract, may not later be heard to ask for a rescission.
Here the marriage took place in 1930. Five children were born of the union. In the eyes of the Church, of which the plaintiff claims to be a loyal member, these children were all born out of wedlock. This would cause a truly religious mother grave concern and must have at least on five occasions raised the question of the sincerity of the husband’s premarital protestations.
Having in mind the late Justice Bonynge’s comment that the bench in these cases should exercise a certain amount of “ judicial naíveté ”, and making due allowance for the rural simplicity of the plaintiff and full credit for a consequent gullibility, this court cannot make itself believe that the plaintiff has but recently become convinced of her husband’s fraud and insincerity.
The strictures of the divorce laws of this State have caused many unhappy spouses to bring annulment actions as a way out of their troubles and the number of these cases is growing daily. For one with a sufficiently elastic conscience it is as easy to get an annulment in New York as a divorce anywhere in the United States. The court feels that the plaintiff’s desire to get rid of a husband now in State prison is the motivation behind this suit rather than any religious scruple. Complaint dismissed.