stock of the company, nor upon any bonds | between United States bonds, patent rights, of the United States composing a part of and copyrights. The same principle underthat stock. The statute designates it a tax lies the transfer tax, which is imposed upon upon the 'corporate franchise or business' the right of succession by will or intestacy of the company, and reference is only made to the property of a deceased person. It is to its capital stock and dividends for the not laid upon the property thus transferred, purpose of determining the amount of the although it is computed from its value, tax to be exacted each year. By the term and, even if the property consists wholly or 'corporate franchise or business,' as here in part of United States bonds, they are used, we understand is meant the appraised the same as any other property of the decedent for the purpose of ascertaining the amount of the tax. Re Sherman, 153 N. Y. 1, 46 N. E. 1032; Re Whiting, 150 N. Y. 27, 34 L. R. A. 232, 44 N. E. 715; Re Sloane, 154 N. Y. 109, 113, 47 N. E. 978; Moore v. Ruckgaber, 184 U. S. 593, 46 L. ed. 705, 22 Sup. Ct. Rep. 521. A state cannot tax the property of the United States, yet we upheld a transfer tax upon a legacy to the United States, because it was not a tax upon property, but upon the right of succession. Re Merriam, 141 N. Y. 479, 36 N. E. 505. right or privilege given by the state to two While the power to tax involves the power to destroy by excessive taxation, when the tax is not imposed for that purpose, nor laid upon property, but upon the franchise of a corporation or upon the right of succession by an individual, and all property, whether exempt by Federal law or not, is treated alike by including it in the appraisal made to fix the amount of the tax, the state has the power to impose a franchise or a succession tax, even if, as in this case, substantially all the property so appraised happens to be exempt from taxation by statutes of the United States. Moreover, while excessive taxation upon franchises might destroy the corporation itself, which is the creature of the state it could not destroy the letters patent, which, when sold in liquidation proceedings, would confer upon the purchaser an unimpaired right of monopoly. None of the cases which we have thus far cited were called to our attention, nor was the distinction between a tax upon property and a tax upon franchises pointed out when we had before us the case of People ex rel. A. J. Johnson Co. v. Roberts, 159 N. Y. 70, 45 L. R. A. 126, 53 N. E. 685. Upon All these cases relate to United States the argument of that case the attorney genbonds, but they involve the principle that, eral cited People ex rel. Edison Electric while a tax cannot be assessed upon prop- Light Co. v. Campbell, 138 N. Y. 543, 20 L. erty that is exempt by act of Congress, it R. A. 453, 34 N. E. 370, which involved the may be imposed upon the franchise of a cor- question as to what part of the capital poration to which such exempt property be- stock of the relator therein was employed longs, and may be measured by the value in this state, and the claim, as well as the thereof. The principle applies with the same concession, of its counsel was that "the force to patent rights as to United States capital stock of the relator invested in the bonds, both of which are exempt from taxa-letters patent of the United States and of tion. There is no distinction in this respect other countries in North and South Amer The only other cases cited in behalf of the state upon the argument of the Johnson Case, except those relating to the good will of the relator therein, which was the main subject of discussion at the bar, were Pal in this ica is not liable to taxation here, except in | tion, but is by the franchise tax, provided so far as the said letters patent of the for in § 182, made taxable by the state offiUnited States apply to the territory includ- cers, and solely for the benefit of the state ed within the state of New York." No at large. After providing for such a tax question as to a franchise tax was involved and arranging for the rate and basis upon in the Edison Case, nor was the distinction which it shall be levied, the same section between a tax upon the property of a cor- provides that a foreign corporation shall poration and a tax upon the right of a cor- pay a like tax for the privilege of exercisporation to continue to live and do business ing its corporate franchises alluded to in any way. capital employed by it within this state.' state, to be computed upon the basis of the In the instance of a foreign corporation it is not its franchise that is taxed, because it is not subject to the laws of this state; rests solely in the privilege allowed it of but it is that intangible property which exercising its franchise within this state upon which the tax is levied. no more an assessment upon the patents themselves in the case of a foreign corporation than it is in the case of a domestic corporation, and in neither is it intended as an assessment upon anything other than a mere intangible right to exercise a franchise within this state." mer v. De Witt, 47 N. Y. 539, 7 Am. Rep. . . It is The interstate commerce case, relied upon by the respondent, is not analogous, because the tax, being imposed directly "upon the gross receipts of said company for tolls and transportation," was not a tax upon franchises, but upon "the transportation of persons and property by sea, between different states, and to and from foreign countries." Philadelphia & S. Mail S. S. Co. v. Pennsylvania, 122 U. S. 326, 30 L. ed. 1200, 7 Sup. Ct. Rep. 1118. 480, and People ex rel. Wiebusch & H. Co. v. Roberts, 154 N. Y. 108, 47 N. E. 980, in neither of which was the controlling distinction between taxing property and taxing the right to do business as a corporation mentioned or involved. Accordingly, in deciding the Johnson Case, we overlooked that distinction, treated the tax as imposed upon property, and held that, as copyrights granted by the United States are not subject to the taxing power of the state, the comptroller erred when he included them in making his valuation. There is no distinction, so far as the right of taxation is concerned, between copyrights and patent rights, and the state has no power to tax either, but it has power to impose a franchise tax upon a corporation which owns either, because that is not a tax upon property, as we have already endeavored to make clear. The subject is of such importance to the state that we think the rule of stare decisis should be departed from in this instance, no rule of property being involved, as otherwise all corporations subject to a franchise tax would escape the burden to the extent that they invested their capital in United States bonds, or any other property exempt from taxation by act of Congress. Laws 1901, pp. 316, 1319, chaps. 132, 535. An effort is made to distinguish the John-fixing the amount of a tax upon the franson Case upon the ground that the relator chise of a corporation subject to such taxatherein was a foreign corporation, while in the case in hand it is a domestic corporation. This distinction would "result in an unjust discrimination against domestic corporations." For the reasons given by the learned appellate division we think there is no such distinction. We unite with them in saying that "the principle of taxation is the same in both cases. In the case of a domestic corporation, the purpose is to tax that intangible property belonging to it, which is frequently of great value, and rests solely in its right to exist and carry on its business. Such property is not reached by local taxa The error which this appeal is brought to correct was primarily our own, for the learned appellate division properly followed a decision made by us, which, as we now think, was based upon an erroneous principle, and hence should be overruled in so far as it held that property owned by a corporation and exempt by the laws of the United States should not be appraised for the purpose of tion. Owing to the importance of the question involved, Judge Gray and Judge Martin, who sat in the Johnson Case, but did not sit in this case, were requested to consider the subject, and we are authorized to announce that they concur in this opinion. The order of the Appellate Division should be reversed, and the determination of the comptroller affirmed, but without costs. Parker, Ch. J., and O'Brien, Bartlett, Haight, Cullen, and Werner, JJ., concur. Statement by Gray, J.: This action was brought to have the marriage between the plaintiff and the defendant annulled upon the ground that the former's consent thereto was induced by the fraud of the latter. It is alleged in the complaint in substance, that prior to the marriage of the parties, in the city of New York, in November, 1891, the defendant falsely represented to the plaintiff that in October, 1891, during a period of time when he was absent from the state, she had given birth to a male child, of which he was the father, whom she exhibited to him as such; that he, believing these representations, and, in order to legitimatize the child, was in duced to marry the defendant; that without such representations he would not have made the marriage; that the defendant's representations were false, in that she had not given birth to any child, but had fraudulently procured one to produce to the plaintiff for the purpose of inducing him to consent to marry her; that, as a result of the stratagem, he did marry her; that there has been no issue of the marriage; that the falsity of these representations was discovered but a short time before the commencement of the action, and that since their discovery he has not cohabited with the defendant. In answer to the complaint, the defendant denied so much of its allegations as related to the fraudulent representations, and set up an earlier marriage with the plaintiff in 1890, which was consummated by co NOTE. For fraud as ground for annulment of marriage, see also, in this series, Lewis v. Lewis, 9 L. R. A. 505; Franke v. Franke, 18 L. R. A. 375; Cummington v. Belchertown, 4 L. R. A. 131; and Smith v. Smith, 41 L. R. A. 800. habitation. After the joinder of issue, the defendant moved for a jury trial, and the trial court framed specific questions of fact, which were tried out before a jury, who rendered a verdict upon each. The first question was whether the parties had been earlier married by an Italian minister as alleged by the defendant. To this question the jury answered, "No." The second question was whether, in October, 1891, or prior thereto, the defendant for the purpose of inducing the plaintiff to marry her, falsely and fraudulently represented to him that, during plaintiff's absence from the state, she had given birth to a male child, of which he was the father, and whether she then and there produced and exhibited said child to "Yes." The third question was whether the him. To this question the jury answered, plaintiff, relying upon such representations of the defendant, and believing the same to be true, married the defendant in November, 1891, at the city of New York. To this question the jury answered, “Yes.” The fourth question was whether said defendant gave birth to said male child, or to any child, on or about October 5, 1891. To this question the jury answered, "No." Upon the action coming on regularly to be heard at a special term, the court adopted these findings of the jury, and filed a decision embodying the facts established by the verdict, and, further, finding that at the time of the marriage the plaintiff was seised of real estate of the value of $65,000, as the been any issue of the marriage; that at the defendant well knew; that there had noť time of the marriage the parties were, and ever since have been, residents of the state; that since the discovery of the defendant's fraud the plaintiff had not cohabited with her, and that the plaintiff was entitled to a defendant. The judgment entered upon the judgment annulling his marriage with the decision was appealed from by the defendant to the appellate division in the second department, where it was reversed, and a new trial was ordered. From the order of reversal the plaintiff has appealed to this court. Mr. Byron Traver, for appellant: The verdict of the jury established that defendant feigned pregnancy and child birth, and actually produced a false child, in order to bring about a marriage with plaintiff. The trick of defendant in obtaining plaintiff's consent-the very essence of a marriage contract-was an intentional fraud upon him, which justified the special term in declaring the marriage a nullity. People ex rel. Phelps v. Oyer & Terminer Court, 83 N. Y. 436; Mayer v. Dean, 115 N. Y. 556, 5 L. R. A. 540, 22 N. E 261; Van Y. 275; Kountze v. Kennedy, 147 N. Y. 124, 29 L. R. A. 360, 41 N. E. 414; Hadcock v. Osmer, 153 N. Y. 604, 47 N. E. 923; Brown v. Post, 1 Hun, 303, Affirmed in 62 N. Y. 651; 14 Am. & Eng. Enc. Law, 2d ed. pp. 120, 122. Schaick v. Third Ave. R. Co. 38 N. Y. 346; | Court, 83 N. Y. 436; Mead v. Bunn, 32 N. It is the positive statute law of this state that a marriage may be annulled by the court at the suit of the injured party, where it appears that his or her consent to such marriage was obtained by fraud. Code Civ. Proc. § 1743, subdiv. 4. There can safely be no general exclusive definition of what constitutes fraud. Parke, History of the Court of Chancery, p. 508; Lawley v. Hooper, 3 Atk. 279; Mortlock v. Buller, 10 Ves. Jr. 306. No one is at liberty to represent the contrary of that of which he is persuaded in his own mind by way of inducement to another to contract with him. Clark v. Baird, 9 N. Y. 184; Van Houten v. Morse, 162 Mass. 414, 26 L. R. A. 430, 38 N. E. 715; Neville v. Wilkinson, 1 Bro. Ch. 546. Plaintiff had a right to rely on the positive and repeated statements of defendant and her mother that defendant had given birth to the child and he was not required Parties cannot become husband and wife to go to Philadelphia, where the birth was without their mutual consent. alleged to have taken place, and investigate 2 Kent, Com. 76, 77; Portsmouth v. Ports-records and examine witnesses. mouth, 1 Hagg. Eccl. Rep. 355. Our courts have always regarded marriage in no other light than as a civil contract, not differing from any other contract, except that it is not revocable or dissoluble at the will of the parties. Blossom v. Barrett, 37 N. Y. 434, 97 Am. Dec. 747; People v. Peckens, 153 N. Y. 576, 47 N. E. 883. Messrs. Edward Hymes, Emanuel M. Friend, and Michael Schaap, for respondent: Kujek v. Goldman, 150 N. Y. 176, 34 L. The averment that plaintiff relied upon R. A. 156, 44 N. E. 773; Hayes v. People, defendant's representation and believed it 25 N. Y. 390, 82 Am. Dec. 364; Clayton v. is tantamount to an allegation that he had Wardell, 4 N. Y. 230; Griffin v. Griffin, 47 | illicit intercourse with her prior to the marN. Y. 134; Ferlat v. Gojon, Hopk. Ch. 478, riage; otherwise, of course, he could not 14 Am. Dec. 554; Scott v. Shufeldt, 5 Paige, have been deceived by it. This deprives 43; Hides v. Hides, 65 How. Pr. 17; Moot plaintiff of a right to maintain the action. v. Moot, 37 Hun, 288; Keyes v. Keyes, 6 Tait v. Tait, 3 Misc. 218, 23 N. Y. Supp. Misc. 355, 26 N. Y. Supp. 910; King v. 597; States v. States, 37 N. J. Eq. 195; Burton-upon-Trent, 3 Maule & S. 537; Blank | Seilheimer v. Seilheimer, 40 N. J. Eq. 412, v. Blank, 107 N. Y. 91, 13 N. E. 615. Where a party has practised a deception with a view to a particular end, which has been attained by it, he cannot be allowed to deny its materiality. Smith v. Kay, 7 H. L. Cas. 750; Donovan v. Donovan, 9 Allen, 140; Kujek v. Goldman, 150 N. Y. 176, 34 L. R. A. 156, 44 N. E. 773; Piper v. Hoard, 107 N. Y. 73, 13 N. E. 626. When defendant produced this spurious child and induced plaintiff to marry her by the false representation that he was the father of it, she was guilty of an intentional fraud upon him. Scott v. Shufeldt, 5 Paige, 43; Barden v. Barden, 14 N. C. (3 Dev. L.) 548; 2 Nelson, Divorce, § 575; 1 Bishop, Marr. Div. & Sep. § 501; Bigelow, Fr. ed. 1877, p. 93; 2 Kent, Com. 77. It may be that there are persons who would not have been deceived by such representations and active measures as defendant resorted to. But the law does not wholly outlaw the credulous from its protection. People ex rel. Phelps v. Oyer & Terminer 2 Atl. 376; Hoffman v. Hoffman, 30 Pa. 417; Richards v. Richards, 28 Pittsb. L. J. N. S. 16; Allen's Appeal, 99 Pa. 201, 44 Am. Rep. 101; Franke v. Franke (Cal.) 18 L. R. A. 375, 31 Pac. 571; Scroggins v. Scroggins, 14 N. C. (3 Dev. L.) 535; Barden v. Barden, 14 N. C. (3 Dev. L.) 548; Long v. Long, 77 N. C. 304; Shrady v. Logan, 17 Misc. 329, 40 N. Y. Supp. 1010; Glean v. Glean, 70 App. Div. 576, 75 N. Y. Supp. 622. Gray, J., delivered the opinion of the court: The order of the appellate division reversed upon questions of law only, and the facts as found by the trial court, being undisturbed by the determination of the appellate division, must be taken to be true. The theory of the decision by the appellate division, as I understand it, is that the fraud in this case was insufficient to warrant the court in annulling the marriage between the parties, and that the considerations of public policy which environ the marriage relation as a status so far take it out of the domain of ordinary contracts as to render this conclusion necessary. It was | relation, in its legal aspect, has no peculiar considered that the representations of the defendant "worked no wrong for which the law, as at present established," would afford any remedy, in the right to an annulment of the marriage. The prevailing opinion of the learned court is very elaborate and clear, and its conclusions are deliberately reached upon a careful consideration of the authorities. In my opinion, however, it errs in failing to give due effect to the statutory provision relating to the annulment of a marriage for fraud, and in not giving to the element of a free and true consent in a marriage contract that high importance which it has in contracts generally. sanctity as a social institution, a due regard for its consequences and for the orderly constitution of society has caused it to be regulated by laws in its conduct as in its dissolution. Judge Story said of it that it is "something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation, and extent of obligation different from what belong to ordinary contracts." Story, Confl. L. § 108, note. While, then, it is true that marriage contracts are based upon considerations peculiar to themselves, and that public policy is concerned with The question, therefore, is whether, upon the regulation of the family relation, neverfacts establishing that the consent of the theless our law considers marriage in no plaintiff to marry the defendant was ob- other light than as a civil contract. Kujek tained by a fraudulent representation and by v. Goldman, 150 N. Y. 176, 34 L. R. A. 156, a stratagem, causing him to believe that he 44 N. E. 773. The free and full consent was the father of the defendant's child, the which is of the essence of all ordinary confraud was of such a material nature as to tracts is expressly made by the statute necwarrant the court in decreeing the annul-essary to the validity of the marriage conment of the marriage contract. The law tract. The minds of the parties must meet of this state with respect to matrimonial actions is regulated by statute. The Revised Statutes early conferred upon the chancellor the jurisdiction to declare a marriage contract void and to annul the marriage (2 Rev. Stat. 1st ed. 142), and the Code of Civil Procedure, into which their provisions were carried, confers a general jurisdiction upon the courts of the state, which may be called into exercise for certain causes existing at the time of the marriage. One of those causes is stated to be when "the consent of one of the parties was obtained by force, duress, or fraud;" and the only limitation imposed, where the action is on the ground of fraud, is that it must appear that the parties have not, at any time before the commencement of the action, "voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud." Code Civ. Proc. § 1743, subd. 4; Id. § 1750. This language is broad, and warrants but the one reasonable construction that the fraud must be material to that degree that, had it not been practised, the party deceived would not have consented to the marriage. 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. In this case the representation of the defendant was as to a fact, except for the truth of which the necessary consent of the plaintiff would not have been obtained to the marriage. It was designed to create a state of mind in the plaintiff, the operation of which would be to yield a consent to marry the defendant in the belief that he was rectifying a great wrong. The minds of the parties did not meet upon a common basis of operation. The artifice was such as to deceive a reasonably prudent person, and to appeal to his sense of honor and of duty. The plaintiff had a right to rely upon the defendant's statement of a fact, The statutes of this state declare that the truth of which was known to her and marriage, so far as its validity in law is unknown to him, and he was under no obliconcerned, is a civil contract, to which the gation to verify a statement to the truth of consent of parties, capable in law of con- which she had pledged herself. It was a, tracting, is essential. 2 Rev. Stat. 1st ed. gross fraud, and, upon reason, as upon au138. It certainly does differ from ordinary thority, I think it afforded a sufficient common-law contracts by reason of its sub- ground for a decree annulling the marriage ject-matter and of the supervision which the contract. The jurisdiction of a court of state exercises over the marriage relation equity to annul a marriage for fraud in which the contract institutes. In such re- obtaining it was early asserted in this state spects it is sui generis. While the marriage by the court of chancery, at a time when |