Opinion
July, 1933.
Present — Lazansky, P.J., Kapper, Hagarty, Carswell and Tompkins, JJ.
Judgment unanimously affirmed, without costs. Plaintiff's proposed findings numbered 2, 3, 4, 5, 6 and 7, found by the Special Term, are reversed as being inconsistent with the decision; defendant's proposed findings numbered 4, 5, 7 and 8, in so far as they were denied, are found; and this court makes the following new finding: "For nearly two years, and with full knowledge of the alleged fraud that she invokes, the plaintiff accepted benefits under the contract of marriage which she now seeks to annul." It is not necessary to decide whether or not failure of one spouse to accord "marital rights" to the other, where there is no impotence, may be the subject of an action for affirmative relief. ( Mirizio v. Mirizio, 242 N.Y. 74, 80.)