
    Adelle A. States, App’lt, v. Charles T. Cromwell, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1887.)
    
    1. Action to set aside a judgment declaring a marriage null— Judgment of nullity not a bar.
    In an action to set aside, because obtained by fraud, a judgment declaring a marriage a nullity, Held, that the judgment thus sou. ht to be set aside could not be set up as a bar to the action to set it aside."
    2. Same—What is not a bar.
    
      Held, that an order denying the motion of the plaintiff in this action to open her default and let her in to answer in the action for nullity, was not a bar to her action to set aside the judgment as having been obtained by fraud.
    3. Same—When not maintainable.
    The complaint in this action did not controvert any of the facts set up in the complaint in the action for nullity, i.or show that the plaintiff had any defense in that action of which she had been deprived. The complaint in the action for nullity set forth a fraud on the part of this plaintiff sufficient to warrant the court in setting aside the n arriage entered into with this defendant. Held, that the plaintiff could not maintain this, action.
    
      Samuel L. Gross, for app’lt; George Zabriskie, for resp’t.
    
      
       Affirming 32 Hun, 240, mem.
      
    
   Rapallo, J.

—We think the judgment in this case was right, although we do not concur in the ground upon which it was rendered at special term. It was there held by the trial judge that the judgment of nullity of marriage rendered between these parties in the second department on the 23d of September, 1876, not having been reversed on appeal, and a motion to open the default having been denied on the 21st of February, 1881, that judgment and the order denying the motion precluded the plaintiff from maintaining this action.

This action was brought to set aside the judgment of nullity on the ground that the present plaintiff had been induced by the defendant, by untrue statements as to the laws of New York, to refrain from consulting counsel and from defending said action of nullity.

We concur in so much of the dissenting opinion of Daniels, J., at general term in this case, as holds that in this action to set aside the judgment of nullity on the gi’ound that it was obtained by fraud, the judgment thus sought to be set aside could not be set up as a bar to the action to set it aside. This action did not seek to re-ti*y any question of fact which had been tried in the first actioxi; and we also agree that the order of February 21, 188.1, dexxying the motion to opexx the default of the present plaintiff and let her ixx to answer, was not a bar to her action to set aside the judgment as having been obtained by fraud Riggs v. Pursell, 74 N. Y., 370; Foote v. Lathrop, 41 id., 358.

But we are of opinion that the judgment in this case should be sustained on the ground that the plaintiff did not, in her complaint in this action, nor by any offer of proof on the trial, attempt to controvert any of the facts set up in the complaint in the action for nullity, xxor to show that she had any defense to that action, of which she had been deprived. Her charge of fx-aud consists simply of an allegation in substance that the defendant, who is a lawyer, represented to her that her marriage with him was void by the law of New Yox’k, and that she had incurred liability to a criminal prosecution for entering into it, and that she was, by these representations, induced to refrain from defending the action. Without discussing the question of law involved it is sufficient, for the purpose of this appeal, to say that whether the marriage between the defendaxxt and the plaintiff was legal or illegal, as matter of law, the fraud by which she was charged with having induced the defendant to enter into the contract, was sufficient to justify the court in setting it aside, and that she does not in any manner attempt to deny that she was guilty of the fraud charged, nor to show that she had any defense upon the facts to the action of nullity, of which the defexidant deprived her, even if he was wrong in his statement of the law, a question which we do not now decide.

On this ground the judgment should be affirmed, with costs.

All concur.  