(dissenting in part). Concededly, defendant married plaintiff, a second spouse, before the interlocutory decree annulling her prior marriage to another man had become final; accordingly, her marriage to plaintiff was absolutely void ab initio under section 6 of the Domestic Relations Law (McCullen v. McCullen, 162 App. Div. 599; Pettit v. Pettit, 105 App. Div. 312; Karpuk v. Karpuk, 177 Misc. 729; Cross v. Cross, 177 Misc. 347). Estoppel against plaintiff could not validate the marriage (Villafana v. Villafana, 275 App. Div. 810 [dissenting opinion in which I concurred]; Caldwell v. Caldwell, 298 N. Y. 146) and it is not validated merely because the parties continue to cohabit as man and wife after the decree of annulment became final (cf. first cases cited, supra).
Plaintiff should-be granted an annulment and, as defendant is unable to prove a valid marriage to plaintiff, a fact essential to support her counterclaim for separation, that counterclaim should have been dismissed.
Accordingly, I dissent in part and vote to modify the judgment appealed from by granting plaintiff an annulment, denying defendant a separation and affirming only the dismissal of defendant’s second counterclaim relating to moneys allegedly loaned plaintiff by defendant.
Shientag, J., concurs with Callahan, J.; Cohn, J., concurs in result and votes to affirm; Van Voorhis, J., concurs in part, in opinion; Dore, J., dissents in part, in opinion.
Judgment, in all respects, affirmed. Settle order on notice.