Opinion
April 29, 1940.
Present — Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ. [ 172 Misc. 875.]
Action to annul a marriage upon the ground that the defendant-wife at the time she married the plaintiff was the wife of another under an undissolved marriage. From a judgment dismissing the plaintiff's complaint upon the merits he appeals. Judgment unanimously affirmed, with costs. The trial court found inter alia that after the birth of their child, the issue of their marriage, the plaintiff informed the defendant of the claimed invalidity of the decree of divorce which she had obtained from her former husband. The court further found that thereafter the plaintiff continued to reside in the same apartment with the defendant, to provide for her, accompanied her to places of amusement, introduced her to his friends as his wife; that they mutually entertained friends at the apartment occupied by both of them; that he had his meals regularly with the defendant at their apartment; that they occupied the same sleeping room and cohabited as husband and wife. The evidence establishes that this relationship continued while this action was pending. Under such circumstances, the plaintiff is not entitled to equitable relief and is estopped from attacking the marriage relationship entered into with the defendant.