
    Sophie Laner, Respondent, v. Hyman Laner, Appellant.
   The plaintiff brought the action for annulment of marriage on the ground that defendant was physically incapable of entering into the marriage relation and was guilty of fraud in concealing that fact. Defendant’s answer contained denials and a counterclaim alleging physical incapacity of plaintiff and concealment. It is admitted that there was no consummation of the marriage. There were physical examinations of both by physicians by order of the court. On the trial, after plaintiff rested, defendant’s counsel moved to dismiss the complaint. The trial justice inquired if defendant rested and counsel answered that he did not. The court then dismissed the complaint, and the defendant was permitted to withdraw his cross-complaint. The plaintiff’s counsel took an exception, and asked, “ Does your Honor sign findings in the case dismissing the ease?” The answer was, “ Yes, submit your findings.” This decision, subsequently published, was correct. There was no sufficient proof of permanent incapacity on the part of defendant. Later, there was argument before the court and findings were made and an interlocutory judgment and a final judgment entered. From these, together with an intermediate order, the defendant appeals. Whatever procedure the defendant adopted or acquiesced in, he has not had his day in court; and, as already stated, the evidence did not justify the findings and judgments. Final judgment, resettled interlocutory judgment, and order, made on reargument, denying motion to vacate the interlocutory judgment dated June 16, 1937, reversed on the law, without costs, motion to vacate granted, and a new trial granted. The fifth finding of fact is reversed and the conclusions of law are disapproved. Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ., concur.  