Opinion
June 15, 1959
In an action for a divorce, the appeal is from an order which (1) denied appellant's cross motion for summary judgment dismissing the complaint on the ground that no valid marriage exists between appellant and respondent, and (2) referred for determination by the trial court respondent's motion for temporary alimony and a counsel fee. Appellant pleaded an affirmative defense that prior to his marriage with the respondent he was legally married to another woman who was alive on the date of his marriage to respondent, that no valid decree of divorce had been entered affecting said prior marriage at the time he married respondent, and that therefore no valid marriage exists between him and the respondent. Order affirmed, without costs. The determination of the validity of the marriage should await the trial of the action. Nolan, P.J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.