#### Margaret Park, Plaintiff, *v.*Augustus Park, Defendant.

(Supreme Court, New York Special Term,

July, 1898.)

Judgment annulling a marriage — Alimony cannot be awarded — Failure to make personal service — Remedy where a judgment by default is erroneous.

• Where a woman brings an action to annul ■ her marriage, because of a subsisting marriage between the defendant and another woman, the judgment cannot- award to the plaintiff alimony for he'rself, and ' for her children, as th’e plaintiff is not and never was the wife of • the defendant, and such a judgment can make provision for children only where the marriage is avoided for lack of legal consent.

Where the defendant in such an action was not served with process within the state of New York, and did not appear in the action, the court has no jurisdiction to impose upon him any personal obligation of support.

Where a judgment, taken by default in such an action, contains erroneous provisions, the remedy is by a motion to correct and not by an appeal.

Motion to modify judgment by striking out certain provisions.

Daniel Haight (Frederick W. Sherman, of counsel), for motion.

Thomas Gilleran, opposed.

Pryor, J.

In- a judgment annulling a marriage because of a subsisting marriage between the '.defendant and another woman, provision-is made for permanent alimony .to-the plaintiff.

*373.The foundation of the right to alimony being the* duty of the husband to: support his wife (Collins v. Collins, 80 N. Y. 1, 12); obviously, if the woman be not his wife, she can have no claim to> alimony. Blinks v. Blinks, 5 Misc. Rep. 193. As the marriage between these parties was not voidable merely but void *ab initio,*the plaintiff was never the defendant’s wife. Hopper v. Hopper, 92 Hun, 415.

Hpon principle, there can be no provision for alimony in a decree of nullity (2 Bish. on M. *&*D., § 855), and the Code does not authorize it. § 1771; Bartlett v. Bartlett, 1 Clarke Ch. 460.

The sum exacted of the defendant is devoted also to the maintenance of the children; but provision for children, in a judgment of nullity, is authorized only when the marriage is avoided for defect of legal consent. Code Civ. Pro., § 1751.

Hpon another ground, however, the judgment is invalid, in so far as it awards alimony, maintenance and costs. The defendant was not served with process within the state, nor did he appear in the action. The court, therefore, was without jurisdiction to impose upon him any personal obligation. Rigney v. Rigney, 127 N. Y. 408; Pennoyer v. Neff, 95 U. S. 714, 727.

Objection is urged that the relief sought is attainable only by appeal. But, since no appeal lies from a judgment on default, the sole and the appropriate remedy for error :or irregularity in the decree is by motion in the action. Cede Civ. Pro., § 1294; Moeschler v. Lochte, 12 N. Y., St. Repr. 855; Park v. Park, 80 N. Y. 156, 160.

The plaintiff is the innocent victim of a villain, and it is to be regretted that the intended reparation' of her wrongs is illusory. Still, for the fraud in feigning to be a single man, the defendant is liable in damages, and for the bigamy may be sent to the state’s prison.

Motion granted, without costs.