
    Arthur G. Erlanger, Appellant, v. Harriet E. Erlanger, Respondent.
    (Appeals Nos. 1 and 2.)
    Second Department,
    June 9, 1916.
    Husband and wife—annulment of marriage — former wife living — defenses — good faith of defendant — legitimacy of children — alimony and counsel fees — discontinuance of action.
    Where a husband sues for the annulment of a second marriage upon the ground that at the time thereof he was married to another woman now living, which former marriage has not been annulled or dissolved, and the defendant alleges that she has no information sufficient to form a belief of the fact of a former marriage and that children have been born as issue of the second marriage, she is entitled to alimony and counsel fees pendente lite. This because, first, she is entitled to have the status of the plaintiff as to his competency to contract the second marriage established, and second, .because even if he were incompetent she is entitled to have the legitimacy of her children, as to her, established by showing she acted in good faith, as permitted by section 1745 of the Code of Civil Procedure.
    Under such circumstances it was proper for the court to deny the plaintiff’s motion to diseontine the action.
    
      Appeal by the plaintiff, Arthur Gr. Erlanger, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of W estchester on the 20th day of March, 1916, granting defendant’s motion for alimony and counsel fees herein.
    Appeal by the plaintiff, Arthur G-. Erlanger, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 31st day of March, 1916, denying his motion to discontinue the action.
    
      Bernard Bloch, for the appellant.
    
      David J. Gladstone, for the respondent.
   Stapleton, J.:

The plaintiff, alleging his marriage to another woman now living, which marriage has not been annulled or dissolved, and a subsequent ceremonial marriage with the defendant, brings this action to annul his marriage with the defendant. The defendant in her answer denies any knowledge or information sufficient to form a belief of the fact of the former marriage. She specially pleads that two children were born as the issue of the subsequent marriage, and that she was without any knowledge of the former marriage at the time the ceremony between her and the plaintiff was performed. She demands general relief. She moved for alimony pendente lite and for counsel fee. From the order granting the motion an appeal is taken. Plaintiff thereafter moved to discontinue his action, and from the order denying that mption an appeal is taken. We are considering both appeals in this opinion.

Even though the prior marriage were proved the defendant would be entitled to have the complaint dismissed on the merits should this court accept Berry v. Berry (130 App. Div. 53) as an authority. The effect of that decision as an authority has been limited in Brown v. Brown (153 App. Div. 645, 650); and if it were necessary we should be inclined to examine the decision in the light of Stokes v. Stokes (198 N. Y. 301). (See, also, Walter v. Walter, 217 N. Y. 439.) We deem it unnecessary, however, because in the case at bar children are involved.

We think it is clear, from the issue raised by her answer, that the defendant is entitled to have the status of the plaintiff, as to his competency to contract the marriage with her, established. If it be established that he was incompetent to contract she is also entitled to the relief prescribed by section 1745 of the Code of Civil Procedure. It was, therefore, proper for the court to award her alimony and counsel fee. (Higgins v. Sharp, 164 N. Y. 4.) It was proper for the court to deny the plaintiff’s motion to discontinue the action. (Winans v. Winans, 124 N. Y. 140.)

The orders appealed from should be affirmed, with ten dollars costs and disbursements in each case.

Jenks, P. J., Carr, Rich and Putnam, JJ., concurred.

Orders affirmed, with ten dollars costs and disbursements in each case.  