Meserve v. Meserve , 248 A.D. 630 ( 1936 )

In an action to annul a marriage on the ground of fraud, order denying defendant’s motion for summary judgment reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In our opinion, the record in the former action for separation disclosed that there was a distinct issue raised by the pleadings and litigated on the trial as to cohabitation between the parties, which issue was determined against the plaintiff in the present action, and it was found therein that cohabitation continued subsequent to the time that, as alleged by plaintiff in his amended complaint, he discovered the alleged fraud and concealment. The plaintiff may not, therefore, maintain the present action. Lazansky, P. J., Young, Davis, Johnston and Adel, JJ., concur.