In an action for annulment or divorce, in which the defendant wife counterclaimed for divorce or separation, defendant appeals, as limited by her briefs, from so much of a judgment of the Supreme Court, Kings County, entered June 7,1972, as, after a nonjury trial, granted plaintiff an annulment, dismissed defendant’s counterclaims and denied defendant alimony and a counsel fee. Judgment modified, on the law and the facts, by striking therefrom the first decretal paragraph, which granted an annulment. As so modified, judgment affirmed insofar as appealed from, without prejudice to an application by plaintiff to Special Term to amend the judgment to grant him a divorce. In our opinion, plaintiff failed to prove by a preponderance of the credible evidence that defendant had induced the marriage through willful misrepresentations concerning the status of her mental health and her desire to bear children. Plaintiff, therefore, was not entitled to a judgment annulling the marriage. However, the trial court also found that plaintiff would otherwise be entitled to judgment on his cause of action for divorce on the ground of cruel and inhuman treatment. We agree. The evidence was sufficient to establish that defendant had acted in a manner rendering it improper, if not unsafe, for the parties to continue to cohabit (Domestic Relations Law, § 170, subd. [1]). This court is unable to grant plaintiff a divorce, however, because he is not before us as an appellant. Latham, Acting P. J., Cohalan, Brennan, Benjamin and Munder, JJ., concur. [70 Misc 2d 284.]