
    EARL, Respondent, v. EARL, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    July 6, 1904.)
    Action by Nellie L. Dickerson Earl, an infant, against Wheeler N. Earl.
   PER CURIAM.

Judgment and order affirmed, with costs. Held, that plaintiff at thie time of her marriage, having been under the age of legal consent as fixed by chapter 272, p. 215, Laws 1896 (domestic relations law), was entitled to maintain this action for the annulment of her marriage under sections 1743, 1744, of the Code of Civil Procedure, and was not governed by the provisions of section 1742 of said Code (Conte v. Conte, 82 App. Div. 335, 81 N. Y. Supp. 923); also held, that plaintiff, having an absolute statutory right to an annulment of her marriage because contracted under the age of 18 years, did not lose said right merely because, after her complaint was prepared, but before the action was commenced, she returned for a period to live with her husband, such transactions occurring before she had arrived at the age of 18 years (section 1744, supra); also held, that the finding that plaintiff at the time of her marriage was under the age of 18 years was not so unauthorized by or against the weight of the evidence that it should be set aside.

McLENNAN, P. j.,

dissents upon the ground .that the plaintiff, having voluntarily cohabited with the defendant for a period of five months after the appointment of a guardian for the purpose of bringing this action, and after plaintiff had verified the complaint herein, ought not to be granted a judgment annulling her marriage to the defendant.  