Opinion
March 6, 1950.
Order entered July 27, 1949, upon reargument, insofar as appealed from, modified by striking from the ordering paragraph the words "the original decision, dated June 9, 1949, is adhered to" and by substituting in lieu thereof, the following: "plaintiff's motion for examination of defendant be and the same hereby is granted as to all the matters set forth in the order to show cause made the 19th day of May, 1949, except item No. 4, as to which the motion is denied; and the examination is to proceed at a time and place to be set forth in a notice which may be served not less than five nor more than ten days before the time so fixed in the notice". As so modified, the order is affirmed, with $10 costs and disbursements to appellant. Although respondent denies certain accusations that he has asserted that he had procured a foreign decree of divorce and points out that no evidence of a remarriage by him has been submitted, he has not denied that he procured such decree, and admitted it to appellant's attorney, or that he did remarry. The action having been commenced by service of a summons, the motion to examine defendant for the purpose of framing a complaint to set forth an action to test the validity of the purported foreign decree and remarriage should, under the circumstances here presented, have been granted. The appeal from the order entered on June 23, 1949, is dismissed. It was superseded by the above-mentioned order, and, therefore, is not appealable. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.