
    Percy DeM. Betts, Respondent, v. Emma Marie Betts, Appellant.
    First Department,
    February 19, 1915.
    Husband and wife—action for annulment of marriage upon ground that defendant was prohibited from remarrying — motion to vacate interlocutory judgment in favor of plaintiff denied.
    Where, in an action for the annulment of a marriage upon the ground that when the contract was entered into the defendant was prohibited from remarrying by a decree of the court, an interlocutory judgment was entered in favor of the plaintiff, a motion by the defendant to vacate such judgment, made a few days before the expiration thereof, and to excuse her default in pleading and permit her to interpose an answer, settingup a marriage in New Jersey, should be denied, where it appears that in a prior action by the defendant for a separation she had an opportunity to establish the alleged marriage in New Jersey, but conceded that she could not do so.
    Reargument of an appeal by the defendant, Emma Marie Betts, from an order of the Supreme Court, made at the New York Special Term and entered in'the office of the clerk of the county of New York, denying her motion to vacate and set aside an interlocutory judgment, to excuse her default and to permit her to interpose an answer.
    
      Alfred D. Olena, for the appellant.
    
      Reid L. Carr, for the respondent.
   McLaughlin, J.:

This action was brought to procure a judgment adjudging a marriage between the parties to be void, on the ground that when the contract was entered into the defendant was, by a decree of the court, prohibited from remarrying. The defendant made default in pleading and an interlocutory judgment was entered adjudging that at the expiration of three months, unless the court otherwise ordered, the plaintiff would be entitled to the relief prayed for in the complaint. A few days before the expiration of the three months the defendant made a motion to vacate the interlocutory judgment, excuse her default in pleading, and permit her to interpose an answer setting up a marriage in New Jersey. The motion was denied and she appealed. After a consideration of the appeal the court wag of the opinion, notwithstanding defendant’s delay in moving to excuse her default, that she ought to have an opportunity of presenting her alleged defense. The order was, therefore, reversed and such leave given. (165 App. Div. 274.)

Plaintiff then moved for a reargument of the appeal upon the ground, among others, that the court had overlooked certain facts which established that her application was not made in good faith. A reargument was ordered and a further consideration of the record does show that the plaintiff’s contention is correct.

Prior to the commencement of this action the defendant brought an action in this court for a separation, alleging that she was married to the present plaintiff in the State of New York. An answer was interposed, alleging that at the time the marriage took place the plaintiff in that action was prohibited by a decree of the Supreme Oourt of the State of New York from again marrying during the life of a husband who had procured a decree of divorce from her. After that answer was interposed an amended complaint was served, which alleged that the marriage took place in the State of Hew Jersey. An answer was then interposed to the amended complaint, which denied that a marriage had taken place in Hew Jersey. After issue was joined the defendant moved for a bill of particulars of the Hew Jersey marriage. Plaintiff then moved for leave to withdraw the amended, and substitute the original complaint in its place; or for leave to discontinue the action upon the ground, according to an affidavit of her attorney, that the plaintiff would be “unable to establish said marriage in a court of law for lack of proof; * * * that * * * it would he impossible to serve said bill of particulars and being unable to furnish proof of the Hew Jersey marriage, plaintiff cannot proceed upon that cause of action.”

It thus appears that defendant has had an opportunity to establish the identical defense which she now seeks to interpose in this action, and when it was presented she conceded she could not do so and abandoned such claim.

Under these circumstances the motion to vacate the interlocutory judgment and permit defendant to interpose a defense was properly denied, and for that reason the order appealed from should be affirmed, without costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order affirmed, without costs.  