On September 7, 1967, a daughter was born to the parties herein. They had, it seems, been acquaintances for many years; in latter years, the acquaintanceship became a liaison. Linda, the plaintiff, was most anxious that the child be legitimatized by a marriage. He was a young law clerk, not yet admitted to the Bar. He preferred the child be surrendered for adoption. For a time they lived together and he supported mother and child, sporadically. At no time did he deny paternity. And Linda did not institute paternity proceedings.
Come January 4,1968, and Linda, without legal advice, signed a letter purportedly prepared by Stephen himself, wherein he undertook to marry her provided she recognized that the marriage would be one in name only, that immediately after the ceremony she would sign a separation agreement waiving all claims of support and give to him a power of attorney authorizing a Mexican divorce.
On January 24, 1968, the twain were joined in matrimony by a Justice of the Supreme Court of the State of New York. One hour later, Linda, still without an attorney, although one had been suggested, signed a separation agreement, incorporating the essentials of the letter of January 4 (supra), together with the power of attorney, documents which had been prepared before the ceremony by the husband’s attorney. On January 29, 1969, the marriage was dissolved, at the instance of the husband, in the heroic City of Juarez, Bravos District,State of Chihuahua, Mexico.
Now, the plaintiff wife brings before the court her complaint seeking to have the separation agreement and divorce declared null and void. In her complaint, and for our present purposes, we must assume her allegations to be true, she alleges that at the time of her signing she was debilitated, indigent, nervous, hysterical, her signing was “ not the free voluntary, and responsible act of plaintiff ’ ’, that she was ‘1 forced ’ ’ to sign by defendant, who otherwise would not marry her and her daughter would remain illegitimate; and that, inter alia, “at the persuasion and duress of the defendant and his attorney ” she ‘ ‘ forfeited any and all support for herself ’ ’. Special Term has dismissed her complaint. We do not agree. ..
We have before us a presumably valid marriage. It was not a mock ceremony, nor one performed as a jest, or on a dare. The parties knew the ceremony was real, of record, officiated by a State functionary, indeed, a Justice of the Supreme Court. Their motives were not ignoble, the legitimization of their child, actually one of the purposes of marriage. And once the deed was done, the State stepped in, the third party to the mar*255riage. They were no longer free to determine for themselves the essentials of their contract, which flow innately from it. For the marriage contract, once performed, had achieved a status, in which society had an interest; ipso facto, relationships had been created, which the parties cannot dissolve by prearrangement. The husband cannot now say he was “ playacting ” and by his legal clairvoyance anticipate the effect of an annulment; an annulment at least recognizes the subsisting validity of a marriage. In fact, he himself recognized the validity of the marriage by submitting it to a foreign jurisdiction as a valid one, and seeking its dissolution solely on the grounds of incompatibility of temperament.
We believe the complaint of the wife is well taken and within the scope of the complaint in Pomerance v. Pomerance (301 N. Y. 254). She does not attack the marriage, qua marriage, nor claim she was coerced into it, only that she was coerced and duped into signing the separation agreement and the power of attorney, executed concomitantly with the marriage and purporting to undo the intrinsic results of the marriage ceremony. We think she should have an opportunity to demonstrate her position. For if she is correct, it may be the agreement and her appearance in Mexico are properly subject to attack for fraud, duress or overreaching. (Harges v. Harges, 46 Misc 2d 994.)
It is difficult, on these affidavits alone, to appreciate the husband’s position. He undertook by his letter antedating the marriage, to dissolve the marriage and liberate himself from the inherent obligations of it even before the event. And contemporaneously with the marriage, in documents prepared by his lawyer, at his instance, his wife signed, she says not freely, an express agreement requiring the dissolution of the marriage. Having a valid marriage, such conduct and acts appear to be within the condemnation of section 5.311 of the General Obligations Law (as amd. by L. 1966, ch. 254, § 12) repugnant to public policy and antithetical to the tenor of a long line of precedents, some set forth by Judges the most eminent: Anonymous v. Anonymous (49 N. Y. S. 2d 314 [Shientag, J.]), Gregg v. Gregg (133 Misc. 109 [Frahkenthaler, J.] and Kershner v. Kershner (244 App. Div. 34 [Marten, P. J.]). To the same effect, Foster-Freed, Law and the Family, N. Y., vol. 1, § 2:6, p. 17): “ However, where the parties have consented to the marriage they may not thereafter contend that they merely entered into it as a matter of form, such as for the purpose of legitimitizing a child born out of wedlock, or to protect the girl’s name.” (Citing, Delfino v. Delfino, 35 N. Y. S. 2d 693, and *256Erickson v. Erickson, 48 N. Y. S. 2d 588.) In the latter ease, plaintiff was denied an annulment even though the parties never cohabited after the ceremony .
A word as to some of the cases adverted to by the minority opinion: In Amsden v. Amsden (202 Misc. 391) the defendant wife withdrew her answer and did not oppose. In Wagner v. Wagner (59 Pa. D. & C. 90), the court emphatically made it clear that the very purpose of the parties, the legitimization of a child, negatived any idea they contemplated anything but a valid and a binding marriage. And the petition was denied.
In any event, a question of such far-reaching consequence and of such potential mischief as a precedent, should not be determined upon conflicting affidavits. (Yunis v. Yunis, 286 App. Div. 1126; Sullivan v. Sullivan, 285 App. Div. 967; Botway v. Botway, 273 App. Div. 948; Rosenblatt v. Rosenblatt, 209 App. Div. 373; Moat v. Moat, 27 A D 2d 895.)
We would reverse the disposition of Special Term on the law and deny the motion, without costs.