
    Edward Everett, App’lt, v. Georgie Lillian Morrison, sometimes called Georgie Lillian Everett, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Divorce—Default.
    A decree of divorce will not be set aside on the ground that the defendant was induced by fraud to allow it to go against her by default, where she, in fact, has no defense.
    Appeal from order vacating a judgment in this action and giving defendant leave to answer the complaint and try the issues.
    
      George ZabrisJcie, for app’lt;
    
      Ayres & Wallcer, for resp’t.
   Barnard, P. J.

In the fall of 1884, the plaintiff was married to the defendant in Brooklyn by John Courtney, a justice of the peace. There had been illicit relations existing between the parties before the marriage. In April, 1888, the plaintiff obtained a decree of divorce from her on the ground that the defendant was, at the time of her marriage to the plaintiff, the wife of one William G. Morrison. After the divorce the parties continued to live together as man and wife, but in a secretive way and in places more or less secluded. In 1891 the plaintiff abandoned the defendant, and she seeks to open the decree obtained by plaintiff and put in an answer. She avers that the former marriage with Morrison was sportively made in Rhode Island. That she after-wards lived with Morrison as his wife for a few months in the state of Massachusetts, because her father insisted that as she had gone through with the ceremony, she must live with her husband, Morrison. Soon after the defendant left Morrison the plaintiff became acquainted with her and at once became attached to her, and in January, 1884, the intimacy became improper. Although the fact is disputed, I think it is fairly proven that the plaintiff knew of the Morrrison (alleged) marriage and introduced the defendant to a lawyer in Rhode Island to annul the same. Proceedings were commenced to that end, but reached no result, and were subsequently discontinued.

The defendant avers that the plaintiff obtained his divorce from her on the ground that her family would not acknowledge a marriage before a justice of the peace, and that he would have a public ceremonial marriage after he got his decree from this, Justice Courtney’s, marriage. This fact the plaintiff denies, and he avers that the subsequent relations were mutually understood to be meretricious. Assuming that the plaintiff promised to remarry the defendant in a formal manner after the divorce, should the default be opened and the defendant be permitted to answer? This depends upon the merits stated in the proposed answer. Is the formal marriage with Morrison void under the evidence? The facts in respect thereto are undisputed. Morrison presented an approved marriage certificate to the defendant’s father and mother in Massachusetts, The family acknowledged it. The parties lived for six months together as man and wife; publicly and openly in the sight of the world. The defendant left him because of ill treatment and went back to her parents. The formal marriage in Providence is doubtful. No certificate was given the wife. . No clergyman can or has been found. The common law marriage in Massachusetts is proven abundantly, even if the certificate of the Rhode Island clergyman was deceptive, and made to obtain the consent of the defendant's parents to her marriage with Morrison. The right of the plaintiff to the divorce seems clear, and it would not avail the defendant if she was induced by fraud to let a decree go against her by default if she, in point of fact, had no defense. Blank v. Blank, 107 N. Y., 91.

The order should be reversed, with costs and disbursements, and the motion denied, with costs.

Dtkhan and Pbatt, JJ., concur.  