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fore exercised such right in this state, are not to be considered and treated as new voters upon their application for registration, and are not to be subject to the literacy test provision thereof."

I cannot hold that the relator in the instant case brings himself within the provisions permitting him to be enrolled without the literacy test. It seems to me that the relator comes within the exception which is contained in the statute above quoted, which after stating the qualifications for the voter, is as follows:

"If a naturalized citizen, such person must, in addition to the foregoing provision, have been naturalized at least ninety days prior to the day of election."

Applying this provision to the situation as disclosed in the instant case, I would hold that the relator, had he received his citizenship papers on October 1, 1921, should have had his name properly enrolled and registered by the inspectors and officials of election in his district, but the relator became a citizen on December 2, 1921. Under the 90-day provision he would have been entitled to vote on March 2, 1922. The constitutional amendment took effect on January 1, 1922, and contained in that amendment is the provision as to the literacy test. Whatever qualification he had on January 1, 1922, he certainly was not then entitled to vote, nor do I see that his constitutional rights have been invaded. It is true that the Legislature could not curtail or diminish any legal rights possessed by the relator as a citizen, but those rights did not mature until March 2, 1922, and the constitutional amendment as to the requirements of the literacy test on March 2, 1922, became obligatory upon him.

Relator's wife, who never appeared and offered to be enrolled, of course, must be denied the right to enroll, as in no case should relief be granted to those who did not make application in their proper election district for enrollment. In the actual working out of a modus. vivendi it seems to me that this becomes a detail of the duties devolving upon the board of elections, either by application to the board or to the districts by the individuals by affidavit or certificate presented upon the correction day of the voting lists. Any citizen presenting an affidavit or certificate of the refusal of the board of registery to receive his name may have his name enrolled upon the day for the correction of the books or such day as the board of elections should designate for the reception of such names improperly rejected.

As to the instant case, I cannot feel that the action of the inspectors of elections and officials was improper, and the application is therefore denied, but, in view of the confusion arising from the construction of this law, it is denied without costs.

Ordered accordingly.

(121 Misc. Rep. 618)

(202 N.Y.S.)

COHEN et al. v. ROSEVALE REALTY CO., Inc.

(Supreme Court, Special Term, Kings County. October, 1923.)

1. Municipal corporations 120-Zoning resolution held applicable to building commenced before its passage in violation of covenant.

An amendment to a zoning resolution held to apply to a building for which permit was obtained and which was begun before its passage in violation of restrictive covenants, notwithstanding provisions as to existing buildings, and buildings for which permits had been granted, since everything done was unlawful.

2. Municipal corporations 120-Zoning resolution has force of statute.

A zoning resolution and amendments thereto, passed pursuant to special legislative authority and subsequently ratified by legislative recognition, has the force of a statute.

3. Injunction 114(1)-Plaintiffs, who will sustain special damages, entitled to restrain violation of zoning resolutions.

Where plaintiffs show that they will sustain special damages, if defendant is permitted to erect a proposed building in violation of zoning resolutions, they are entitled to equitable aid enjoining the same.

Action by Charles Cohen and another against the Rosevale Realty Company, Inc. Judgment for plaintiffs.

See, also, 120 Misc. Rep. 416, 199 N. Y. Supp. 4.

James Marshall, of New York City (J. George Silberstein, of New York City, of counsel), for plaintiffs.

Hirsh, Newman & Reass, of New York City (Benjamin Reass, of Brooklyn, of counsel), for defendant.

LEWIS, J. The plaintiffs and defendant are the owners of certain premises, which are part of a tract of land known as "Midwood Manor." The land was subject to certain restrictions, which expired January 1, 1923. On or about the 8th day of August, 1922 (prior to the expiration of the restrictions), upon application by the defendant, there was issued by the superintendent of buildings a permit to construct buildings in violation of the restrictive covenants. Construction was started, but thereafter enjoined by temporary and permanent injunction. On December 22, 1922, the board of estimate and apportionment duly adopted an amendment to use map No. 22, which prohibited the construction of the buildings for which the defendant had filed plans. Notwithstanding such amendment, the defendant, since January 1, 1923, has undertaken the erection of the buildings as originally contemplated, which were in violation of the original restrictive covenants and are concededly in violation of the zoning amendment.

[1] This action is brought to restrain the defendant from constructing the buildings in violation of the zoning resolution. Defendant claims that it is protected in its proposed construction by sections 23 and 24 of the original zoning resolution. Section 23 has regard for buildings or premises "existing at the time of the passage of this resolution" in 1916. Section 24 has reference to "any change in the plans, construction, or designated use of a building for which a building permit has been heretofore issued, or plans for which are on file with

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

at the time of the passage of

the building superintendent * this resolution." Existing buildings refer to those that lawfully exist. Buildings erected in violation of a restrictive covenant are illegally in existence. The defendant having built in violation of law cannot benefit by such illegal conduct.

[2] The zoning resolution and the amendments thereto, having been passed pursuant to special authority from the Legislature and subsequently ratified by legislative recognition, have the force of a statute and are not unreasonable in operation on the defendant's property. People ex rel. Sheldon v. Board of Appeals of City of New York, 234 N. Y. 484, 138 N. E. 416; Lincoln Trust Co. v. Williams Bldg. Corporation, 229 N. Y. 313, 128 N. E. 209.

[3] The plaintiffs having proved that they will suffer special damage by the contemplated structure are entitled to equitable aid enjoining the same. Ackerman v. True, 175 N. Y. 353, 67 N. E. 629. Judgment for plaintiffs.

Judgment accordingly.

(207 App. Div. 238)

JACOBSON v. JACOBSON.

(Supreme Court, Appellate Division, Second Department. December 7, 1923.) 1. Marriage ~60 (2)-Cohabitation since discovery of fraud only limitation on right to annulment.

Civil Practice Act, § 1139, prohibiting an annulment on the ground of fraud, if at any time before the commencement of the action the parties voluntarily cohabited as husband and wife, with full knowledge of the fact constituting the fraud, is the only statutory limitation as to the time of commencing an action to annul a marriage for fraud.

2. Marriage 34-Engaged person under duty to disclose diseased condition.

One knowing that he is in a diseased condition is under a duty to disclose that condition to his prospective wife prior to the marriage.

3. Marriage 37-Wife may sue for annulment for fraud, notwithstanding consummation.

Where a husband knew of his diseased condition prior to the marriage on December 25, 1913, but wife did not discover it until 1920, she can maintain an annulment action on the ground of fraudulent concealment, though there is a child of the marriage now 7 years of age.

4. Marriage 60(6)—In annulment action, judgment cannot be granted on theory other than that pleaded.

expres

In an annulment action, founded on express warranties or statements alleged to have been made by defendant to plaintiff and her mother prior to the marriage, a judgment cannot be granted on the theory of fraudulent concealment, though the proof would have authorized it.

5. Bastards-Annulment of marriage will not make child of marriage illeglti

mate.

Under Civil Practice Act, § 1135, an annulment of a marriage on the ground of fraudulent concealment of a diseased condition will not make a child of the marriage illegitimate.

Appeal from Special Term, Kings County.

Action to annul a marriage by Edna Jacobson against Ellis Jacobson. From a judgment dismissing the complaint on the merits, on a decision and findings of the court, plaintiff appeals. Judgment modified

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.)

in accordance with the following opinion, and, as so modified, unanimously affirmed.

Argued before KELLY, P. J., and RICH, MANNING, KELBY, and KAPPER, JJ.

Milton Hertz, of Brooklyn, for appellant.

Jacob Zelenko, of New York City (David D. Glanz, of New York City, on the brief), for respondent.

KELLY, P. J. At the close of the trial the learned trial justice stated orally that he had no doubt the defendant was in a diseased condition at the date of the marriage, and he also stated that defendant's knowledge of his condition was established by the evidence; but he was of opinion that defendant was under no legal duty to disclose his condition, and said that under the circumstances fraud could only be found upon evidence of a deliberate misstatement of the facts. He decided that there was no representation by defendant that he was free from disease, that there was no actual fraud shown, and he therefore dismissed the complaint upon the merits. When the learned judge subsequently passed upon the findings of fact and conclusions of law, he found that defendant was suffering with the disease at the date of the marriage, but that plaintiff did not discover the fact for several years thereafter; that she had not cohabited with defendant after her discovery of the facts; and he also found that she would not have married defendant, had she known of his condition. But in making his formal findings of fact he refused to find that defendant knew of the existence of the disease at the date of the marriage, although he apparently had no doubt about this fact at the close of the trial. He says, in a memorandum handed down with the findings:

"No proof to sustain such a finding can be found in the record. An inference might be drawn that he knew of the malady because of the fact that he went to a doctor soon after the marriage, but inferences are not sufficient always to establish facts.".

[1] The provision of the Civil Practice Act (section 1139) is that a marriage shall not be annulled on the ground of fraud if it appears that at any time before the commencement of the action the parties voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud. The findings of fact take plaintiff out of the prohibition in the statute, and there is no other statutory limitation as to the time of commencing an action to annul a marriage for fraud. An action to annul a marriage for "physical incapacity" must be commenced before five years have expired since the marriage (Civil Practice Act, § 1141), but "physical incapacity" is not the cause of action pleaded.

[2] I dissent from the conclusion of the learned trial justice that there was no obligation upon the defendant to disclose his diseased condition to plaintiff, if known to him before he married her, and that he was under no legal duty to speak concerning his condition. I think the Court of Appeals has decided to the contrary in Svenson v. Svenson, 178 N. Y. 54, 70 N. E. 120, where Judge Martin says of the defendant in that case:

202 N.Y.S.-7

"When he concealed that condition from her, and still induced her to marry hin in ignorance thereof, he was guilty of a base and unmitigated fraud as to a matter essential to the relation into which they contracted to enter. The suppression of the presence of a disease including such dire and disastrous possibilities, directly affecting the marital relation, constitutes a fraud which clearly entitled the innocent party to a decree annulling the marriage contract, particularly when it has not been consummated."

[3] Of course in the case as bar the marriage had been consummated; more than that, the marriage took place on December 25, 1913, and there is a child of the marriage 7 years of age at the date of the commencement of the action, which was not until June 2, 1922. But the basis of the judgment in favor of defendant was not laches in bringing the action; it was based solely upon the ground that there was no fraud in defendant's concealment of the fact that he was suffering from the disease, even though this was known to him. From that I dissent. There does not appear to be any dispute about the defendant's unfortunate condition at the date of the trial, and the trial judge finds that plaintiff did not discover the facts until 1920, since which time she has not cohabited with him. She could therefore maintain an action to annul the marriage upon the ground of fraudulent concealment of his condition known to him at the time. But this is not such an action.

[4] We cannot direct judgment for the plaintiff, because the cause of action pleaded in the complaint is not based upon defendant's fraudulent concealment of the disease. The action is founded upon express warranties or statements alleged to have been made by defendant to plaintiff and to her mother prior to the marriage. The trial justice found that such statements were not made, and we see no reason to interfere with his findings in that respect.

[5] The defendant contends that an annulment of the marriage would make the child of the parties illegitimate, citing what I think is a misleading headnote in Matter of Moncrief, 235 N. Y. 390.1 I do not think the Court of Appeals has decided that children of such an annulled marriage are "illegitimate by statute" in all cases. It is provided in Civil Practice Act, § 1135, subd. 4:

"If a marriage be annulled on the ground of force, duress or fraud, a child of the marriage is deemed the legitimate child of both parents, unless the court by the judgment decides otherwise as to either or both parents."

In the Moncrief Case, supra, 235 N. Y. at page 396, 139 N. E. 552, Judge Andrews cited Price v. Price, 124 N. Y. 589, 27 N. E. 383, 12 L. R. A. 359, and said:

"We said that at common law, where a marriage was annulled, the parties were in the same position as though a marriage had never been entered into, and the children born of it were all illegitimate, unless legitimated by statute. [Italics mine.] This rule remains unimpaired."

I think the child in the case at bar is legitimated by statute, unless the trial court in the judgment decides otherwise, and of course, on the evidence, there is no ground for any other decision. I think, there

1 Case reported at 139 N. E. 550, with headnote not containing misleading quality referred to by court.

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