
    Frank J. Peterson, Appellant, v. Jane Adler Peterson, Respondent.
    First Department,
    December 23, 1938.
    
      
      William J. Walker of counsel [Harold F. Garrahan and Samuel H. Levinkind with him on the brief; Walker, Thurston & Garrahan, attorneys], for the appellant.
    
      Murray Levine of counsel [Murray T. Berman with him on the brief], for the respondent.
   Per Curiam.

Plaintiff commenced this action for an annulment of his marriage with the defendant on October 4, 1937, twelve years after the marriage which took place on October 7, 1925. His claim is that he did not learn until May, 1937, of the alleged premarital fraudulent intent of defendant on which he predicates his suit for annulment. Plaintiff instituted a separation action in 1927 which was settled by a separation agreement recognizing the marriage. Later, on plaintiff’s default, a decree of separation was granted to defendant on her counterclaim, in 1934, nine years after the marriage. At that time no such claim was made. Indeed plaintiff’s sworn statements in his complaint in that separation action contradict his present belated contention. Claims of this kind unless established by clear and convincing proof would open ' wide the door to procuring annulment of marriages where absolute divorce could not be obtained upon the statutory ground. In the light of all the facts disclosed plaintiff’s contention and the evidence alleged to support it are tenuous. In our opinion the trial court was entirely justified in setting aside the jury’s verdict as against the weight of the credible evidence. The order setting aside the jury’s verdict and directing a new trial should be affirmed, with costs.

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.

Order unanimously affirmed, with costs and disbursements.  