The facts are sufficiently stated in the majority opinion. On the testimony the referee found that, *278for the purpose of inducing the plaintiff to consent to the marriage, the defendant “ falsely and fraudulently represented that she had sufficient money to enable the plaintiff to enter into a certain business enterprise, of which the plaintiff at the time informed the defendant; that she further represented that immediately following the marriage ceremony she would advance said money to the plaintiff for the said purpose; that the defendant knew that the plaintiff entered into the marriage aforementioned relying upon the defendant’s representations aforementioned.
“ That as a matter of fact the representations hereinabove set forth were false and untrue; that the defendant did not have sufficient money to enable the plaintiff to enter into the business enterprise that he was contemplating; that she concealed the fact that she did not have the money; said representations were made for the purpose of inducing the plaintiff to enter into the said marriage with the defendant.
“ That the plaintiff was induced to consent to the said marriage by the defendant’s said representations; that he believed at the time of his marriage that the said representations were true; that if the said representations had not been made to him he would not have consented to the said marriage.”
In view of these findings, the' decision of the majority that a financial misrepresentation does not go to the essence of the contract is a purely arbitrary holding completely at variance with the facts of the case. It was said by the Court of Appeals in di Lorenzo v. di Lorenzo (174 N. Y. 467): “ While, then, it is true that marriage contracts are based upon considerations peculiar to themselves and that public policy is concerned with the regulation of the family relation, nevertheless, our law considers marriage in, no other light than as a civil contract. (Kujek v. Goldman, 150 N. Y. 176.) The free and full consent, which is of the essence of all ordinary contracts, is expressly made by the statute necessary to the validity of the marriage contract. The minds of the parties must meet in one intention. It is a general rule that every misrepresentation of a material fact, made with the intention to induce another to enter, into an agreement and without which he would not have done so, justifies the court in vacating the agreement. It is obvious that no one would obligate himself by a contract, if he knew that a material representation, entering into the reason for his consent, was untrue. There is no valid reason for excepting the marriage contract from the general rule [p. 472]. * * * If the plaintiff proves to the satisfaction of the court that, through misrepresentation of some fact, which was an essential element in the giving of his consent to the contract of marriage and which was *279of such a nature as to deceive an ordinarily prudent person, he has been victimized, the court is empowered to annul the marriage ” (p. 474).
In view of this clear statement of the position of the Court of Appeals, we find no justification for the attempt to whittle away the breadth of its decision because of some other view of public policy than that stated by our highest court.
After the decision in di Lorenzo v. di Lorenzo (supra), Svenson v. Svenson was decided by the Court of Appeals (178 N. Y. 54). That case involved an action for an annulment because of the discovery after marriage and before consummation that the husband had a venereal disease. The Court of Appeals affirmed di Lorenzo v. di Lorenzo and cited with approval from standard text writers on domestic relations as follows: “ ' Marriage begins by contract and results in a status. If, before children are begotten, before debts are created, real estate involved, and the community have long recognized the relation, the injured party seeks relief from fraud, error or duress, it seems clear that no consideration of public policy will prevent a court from annulling a marriage where the relation has not fully ripened into the complications of a public status. In such case the marriage is but little more than a contract; and, in view of the serious consequences to follow, the degree of fraud which vitiates a contract should be sufficient.’ (Nelson on Marriage and Divorce, § 600.) ' Where there has been no consummation, any fraud which would be sufficient to annul a contract should in reason be sufficient to annul a marriage ceremony. No satisfactory reason of the law will justify the courts in declaring valid such a contract of marriage when tainted with fraud or duress where the only effect will be the punishment of the innocent and the confiscation of his or her property by the deception. If the marriage is declared valid it will exist in name only, preventing both parties from marrying again and bringing the marriage relation into disrepute. Every reason for relief from fraud is applicable here, where a denial of relief is fraught with evil consequences much greater than those flowing from ordinary contracts.’ (Id. 602.) ‘ Whatever of fraud, of error, or duress will vitiate any other contract, should ordinarily be received as sufficient to vitiate the mere marriage contract, whether executory or executed, viewed as a thing separate from the consummation which follows.’ (1 Bishop on Marriage and Divorce, § 166 et seq.) ”
For further discussion of the cases on the subject, see the opinion of Lazansky, J., in Griffin v. Griffin (122 Misc. 837).
The conclusion appears inescapable that at least before consummation of the marriage misrepresentations of property are *280as much a cause for an annulment as misrepresentations concerning health (O’Connell v. O’Connell, 201 App. Div. 338) or promises for a further religious ceremony (Rutstein v. Rutstein, 221 App. Div. 70; Aufiero v. Aufiero, 222 id. 479).
The view expressed in the prevailing decision was once the law of this State (Fisk v. Fisk, 6 App. Div. 432), but was changed by the Court of Appeals in the di Lorenzo Case. For the last thirty years the Supreme Court in this State has been following the broad general doctrine of the di Lorenzo case and has been habitually granting annulment under circumstances similar to the present facts. (Robert v. Robert, 87 Misc. 629; Sheridan v. Sheridan, 186 N. Y. Supp. 470; Truiano v. Truiano, 121 Misc. 635.)
The judgment should be reversed and judgment directed as prayed for in the complaint.
O’Malley, J., concurs.
Judgment affirmed, without costs.