Opinion
December 1, 1966
Appeal from the Erie Special Term.
Present — Bastow, J.P., Goldman, Henry, Del Vecchio and Marsh, JJ.
Order unanimously reversed and application for judgment annulling the marriage of the parties granted. Findings of fact and conclusions of law made. Memorandum: There was satisfactory proof that prior to his marriage defendant suffered from a pathologic sexuality known as voyeurism which caused him to peek into house windows and to engage in acts of indecent exposure. There was also proof that the mental disorder and the overt acts accompanying it existed prior to the marriage, that defendant then knew that the acts were abnormal, and that plaintiff would not have married him had she known of his mental condition. Defendant did not disclose the existence of his disorder to plaintiff until six years after their marriage. Upon discovery of the facts the plaintiff ceased to cohabit with him. Defendant's knowledge of his condition cast upon him the affirmative duty of disclosure and concealment in violation of the duty to disclose was sufficient to sustain the action. ( Kober v. Kober, 16 N.Y.2d 191; Evenson v. Evenson 178 N.Y. 54; Harris v. Harris, 201 App. Div. 880; Alter v. Alter, 250 App. Div. 428; Schaeffer v. Schaeffer, 20 Misc.2d 662; 4 Am.Jur.2d, Annulment of Marriage, § 27.)