The question presented is whether an deceit may be grounded on a putative marriage induced by a contrived sham civil ceremony.
We have sustained an action for deceit resulting in a bigamous marriage consequent on defendant’s false representation that he was unmarried. (Friedman v. Libin, 4 Misc 2d 248, affd. 3 A D 2d 827; accord: Blossom v, Barrett, 37 N. Y. 434; Benintendi v. Benintendi, 298 N. Y. 848.) A bigamous marriage is void (Domestic Relations Law, § 6) as is an unsolemnized one (id. § 11). Hence the legal effect in each case is identical.
While there may be differences between a void bigamous marriage and one which is void for failure properly .to solemnize it, those differences should not lead to any distinction in treatment *108where the marriage is induced by fraud, The gravamen of a complaint in fraud and deceit in both types of cases is that a defendant took certain affirmative, fraudulent steps which resulted in damage to plaintiff. In other words, defendant is not being charged with nonfeasance in failing to keep a promise but with active misfeasance. The charge is not that plaintiff was wronged by defendant’s failure to marry her but that she was injured by defendant’s affirmative, fraudulent acts in the performance of what developed to be a void civil ceremony.
Like the bigamous marriage, a ceremony was in fact performed, albeit by someone who, to the knowledge and connivance of defendant, and unknown to plaintiff, was not qualified to perform it. .That proof may be more easily obtained to establish the marriage ceremony in .the case of a bigamous marriage is not controlling since we are dealing here with a pleading whose allegations must be accepted as true. Assuming the truth of the allegations, it is apparent that this action for fraud is not a subterfuge to circumvent the statutory prohibition against actions for breach of promise to marry. A statute designed to prevent fraud should not unnecessarily be extended by construction to assist in the perpetration of a fraud.
The gravamen of an action for deceit in the inducement of a marriage relation is the change of status. (Leventhal v. Liberman, 262 N. Y. 209, 212; Snyder v. Snyder, 172 Misc. 204, 205; Friedman v. Libin, supra, p. 256.) Often effected by a promise of marriage, nevertheless a change of status is not an essential of the action for seduction. Therefore, in proscribing actions for seduction article 2-A of the Civil .Practice Act does not preclude this action for deceit. (See Ann. 72 A. L. R. 2d 982.)
We are presently concerned only with the legal sufficiency of the first cause of action. Whether in fact the plaintiff was deceived involves factual considerations. It is not the law, however, that one circumstanced as the plaintiff may not rely on the representations alleged to have been made by this defendant. (Blossom v. Barrett, supra, p. 436; Mead v. Bunn, 32 N. Y. 275, 280; Benintendi v. Benintendi, supra.)
Defendant is not aided by considerations of public policy. Article 2-A expresses the public policy to discourage marriages resulting from the threats incident to the actions thereby proscribed. {Fearon v. Treanor, 272 N. Y. 268, 274.) It is not the public policy to enable the utilization and exploitation of the marriage ceremony for a fraudulent purpose be it in the form of a bigamous or sham marriage.
Accordingly, I dissent and vote to affirm the order.
*109Rabin, J. P„, and Steuer, J., concur with Eager, J.; McNally, J., dissents in opinion in which Tálente, J., concurs.
Order, so far as appealed from, entered on June 27, 1962, reversed, on the law, with $20 costs and disbursements to appellant, and the motion to dismiss plaintiff’s first cause of action granted, with $10 costs.