The first requisite of success in a separation action is a valid marriage ( Fischer v. Fischer, 254 N.Y. 463). When plaintiff and defendant were married in Elkton, Maryland, on April 22, 1934, it is undisputed that an interlocutory decree divorcing defendant from a former wife had not become final. It had been entered in the office of the Clerk of New York County on January 23, 1934, and did not become final until April 23, 1934. The marriage between these parties, however well-intentioned on plaintiff's part, was therefore void, nor is defendant estopped to assert its invalidity ( Landsman v. Landsman, 302 N.Y. 45). In this separation action plaintiff must be denied temporary alimony and counsel fee for the trial and for conducting this appeal, in view of the lack of prospect of success. This determination is without prejudice to such rights, if any, as plaintiff may have in event that an annulment action be instituted. Orders reversed and plaintiff's motions for counsel fees and alimony, and additional counsel fee with respect to appeal from order of June 19, 1951, denied.
Glennon and Shientag, JJ., dissent and vote to affirm.