RAPALLO, J.

We think the judgment in this case was right, although we do not concur in the ground upon which it was rendered at Special Term. It was there held by the trial judge that the judgment of nullity of marriage rendered between these parties in the second department, on the 23d of September, 1876, not having been reversed on appeal, and a motion to open the default having been denied on the 21st of February, 1881, that judgment and the order denying the motion precluded the plaintiff from maintaining this action.

This action was brought to set aside the judgment of nullity on the ground that the present plaintiff had been induced by the defendant, by untrue statements as to the law of New York, to refrain from consulting counsel and from defending said action of nullity.

We concur in so much of the dissenting opinion of DANIELS, J., at General Term, in this case, as holds that, in this action to set aside the judgment of nullity on the ground that it was obtained by fraud, the judgment thus sought to be set aside could not be set up as a bar to the action to set it aside. This action did not seek to retry any question of fact which had been tried in the first action; and we also agree that the order of February 21, 1881, denying the motion to open the default of the present plaintiff and let her in to answer, was not a bar to her action to set aside the judgment as having been obtained by fraud. ( Riggs v. Pursell, 74 N.Y. 370; Foote v. Lathrop, 41 id. 358.)

But we are of opinion that the judgment in this case should be sustained on the ground that the plaintiff did not in her complaint in this action, nor by any offer of proof on the trial, attempt to controvert any of the facts set up in the complaint in the action for nullity, nor to show that she had any defense to that action of which she was deprived. Her charge of fraud consists simply of an allegation, in substance, that the defendant, who is a lawyer, represented to her that her marriage with him was void by the law of New York, and that she had incurred liability to a criminal prosecution for entering into it, and that she was by these representations induced to refrain from defending the action. Without discussing the question of law involved it is sufficient, for the purpose of this appeal, to say that whether the marriage between the defendant and the plaintiff was legal or illegal, as matter of law, the fraud by which she was charged with having induced the defendant to enter into the contract, was sufficient to justify the court in setting it aside, and that she does not in any manner attempt to deny that she was guilty of the fraud charged, nor to show that she had any defense, upon the facts, to the action of nullity, of which the defendant deprived her, even if he was wrong in his statement of the law, a question which we do not now decide.

On this ground the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.