Opinion
December 22, 1942.
The plaintiff appeals from a judgment dismissing his complaint in an action to annul his marriage to the defendant, and granting the defendant judgment upon her counterclaim for separation. Judgment in favor of the defendant dismissing the complaint and granting a separation, with alimony, to defendant, reversed on the law, without costs, and judgment directed in favor of the plaintiff, without costs, annulling his marriage, as prayed for in the complaint. The findings and conclusions are reversed and plaintiff's proposed findings of fact numbered First, Second, Third, Fourth, Fifth and Sixth and the proposed conclusions of law numbered First, Fourth, Fifth and Sixth are found. The finding of the trial court of the defendant's marriage to one Kroell previous to her marriage to the plaintiff, and that such marriage had not been annulled or dissolved at the time that she went through the marriage ceremony with the plaintiff is amply supported by the evidence and under the facts here the plaintiff has established that he is entitled to relief. ( Davis v. Davis, 279 N.Y. 657.) Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur. [ 176 Misc. 690.]