| N.Y. App. Div. | Feb 21, 1955
In this action for an annulment, the complaint alleged that at the time of the marriage of the parties hereto in 1935, the defendant’s husband by a prior, undissolved marriage was still living, and that plaintiff married defendant in reliance upon her fraudulent misrepresentation that she had obtained a divorce from said prior husband. The amended answer consisted of (1) general denials, (2) an affirmative defense to the effect that defendant married plaintiff in reliance upon his advice to her that her prior marriage was void because her prior husband already had a wife by a previous, undissolved marriage, and (3) two counterclaims for a legal separation. The reply denied the affirmative allegations of the amended answer. After a trial without a jury, the court rendered its decision and thereafter granted judgment (1) dismissing the complaint on the merits, on the ground that plaintiff had failed to establish the allegations in his complaint as to the alleged fraud, and (2) granting defendant a separation and alimony, on her counterclaims, for cruelty and nonsupport. Plaintiff appeals from the decision and said judgment. Judgment reversed on the law and the facts, without costs, counterclaims dismissed and annulment granted to plaintiff. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. The record clearly shows that defendant had a husband by a prior, undissolved marriage at the time she married plaintiff. Therefore, the latter marriage was void (Domestic Relations Law, § 6), the counterclaims for separation and an allowance of alimony based thereon will not lie (Hansen v. Hansen, 167 Mise. 155), and plaintiff is entitled to an annulment (Civ. Prae. Act, § 1134). The appeal from the decision is dismissed, without costs. Ho appeal lies from a decision. Nolan, P. J., Wenzel, MacCrate, Schmidt and Murphy, JJ., concur.