
    Heddy Schacht, Appellant, v. Joseph Schacht, Respondent.
   In an action by a wife for a judicial separation, wherein the defendant husband asserted a counterclaim for annulment of the marriage on the ground of fraud, the wife appeals from an interlocutory judgment of the Supreme Court, Queens County, entered February 1, 1965 upon the court’s opinion-decision after a nonjury trial, which dismissed the eompalint and declared the marriage a nullity. Judgment reversed on the law and the facts, with costs; the defendant’s counterclaim for annulment is severed and dismissed; and a new trial is granted as to the issues raised by the plaintiff’s cause of action for a separation. The findings of fact implicit or contained in the court’s decision which are inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the evidence with respect to the fraud claimed by the defendant falls far short of the quantum and quality of proof required for the annulment of a marriage on the ground of fraud. The record wholly fails to support a finding of a present intention to violate the representation when made — even if it be assumed that the representation was made. The marital relation, the conduct of the parties, and the testimony of the defendant himself indicate nonrelianee upon the alleged promise, as well as condonation. Nor has it been shown that the marital break was due to any cause other than the general discontent and ineompatability of the parties. As the grant of the annulment made the separation action academic and may well have precluded a complete inquiry into the issues raised by the complaint, we believe the interests of justice require a retrial of the issues in the plaintiff’s action for a separation. Beldoek, P. J., Ughetta, Brennan, Hopkins and Benjamin, JJ., concur.  