The complaint states in orthodox form a cause of action by a wife against her husband for a separation. "In every action for separation the primary fact to be proved is an existing marriage between the parties." (Fischer v. Fischer, 254 N.Y. 463,466.)
In his answer the defendant pleads that he has always been domiciled in this State where he first married a wife who is still living, and that the status alleged in the complaint was taken up after a divorce which he obtained against his first wife in another State through an action wherein she was not personally served with process and did not appear. From these allegations, as nobody denies, the inference of law follows that the plaintiff is not and never was the wife of the defendant. (Dom. Rel. Law, §6; Winston v. Winston, 165 N.Y. 553. Cf. Glaser v.Glaser, 276 N.Y. 296.)
Nevertheless, the court now holds that the plaintiff may succeed in this matrimonial action for a separation from the defendant as her husband, though the court also certifies that nothing in its decision is to be taken to mean that the defendant is not the husband of his first wife. This ruling signifies that, because the defendant took it upon himself to marry the plaintiff and lived with her as her husband, he will not now be heard to contradict himself by asserting the truth that he was all the time the husband of another. If the question were res integra, this disposition would perhaps be right, seeing that all estoppels run against a showing of the truth. But I think that view of the defendant's position is not open to us.
One of the last of our relevant cases is Davis v. Davis (279 N.Y. 657). There a man brought an action to annul his marriage to a woman who had secured a similarly void foreign divorce decree. With full knowledge of the circumstances surrounding the decree, he had induced her to *Page 362 marry him in honest reliance upon it. A child had been born of their union. On those facts and on the reasoning of Kaufman v.Kaufman (177 App. Div. 162) the woman asked the court in its sound discretion to estop the man from questioning his marriage to her. The man had judgment declaring that marriage wholly void on the ground that at the time the woman essayed it she had a husband living and undivorced.
A claim of equitable preclusion much the same as that advanced in the Davis case was also rejected in Fischer v. Fischer (supra) and in Lefferts v. Lefferts (263 N.Y. 131). Unless these recent cases can now be distinguished we cannot contrive aquasi-estoppel in favor of the present plaintiff. It is quite true that in the Fischer, Lefferts and Davis cases the party who sought to impeach the void foreign divorce decree was not (as in this case) the party who procured it. This chance circumstance may not, I think, be here given controlling effect consistently with the state of our decisions.
In Stevens v. Stevens (273 N.Y. 157) we held that a void divorce decree secured in another State by a husband did not preclude him from maintaining a counterclaim for divorce in an action brought by his wife for a separation. There, however, neither party had gone through another marriage ceremony and so we did not in that case come to any question as to what the result would have been in such a predicament. So, in Vose v.Vose (280 N.Y. 779), we held that a wife could maintain an action for a separation from her husband in the face of a void foreign divorce decree obtained by her against him, there being again no marriage involved other than that of the parties.
In Starbuck v. Starbuck (173 N.Y. 503) a wife who had procured a void foreign divorce decree was held to be thereby precluded from claiming dower in the lands of her husband who had remarried; in Bell v. Little (204 App. Div. 235; 237 N.Y. 519) a wife who had procured such a decree was on that account denied dower in the lands of a man she had married thereafter; inBrown v. Brown (242 App. Div. 33; 266 N.Y. 532) a second wife's action on a *Page 363 contract dependent on the validity of her marriage prevailed over a plea that a prior marriage of the defendant husband had not been dissolved by a foreign divorce decree obtained by him; and in Hynes v. Title Guarantee Trust Co. (273 N.Y. 612), where a second wife sued on a contract that she was to have dower in lands owned by a corporation controlled by her husband, we held that the invalidity of his foreign divorce from his first wife would be no defense.
All the cited cases divide themselves into two categories.
Fischer v. Fischer, Lefferts v. Lefferts, Stevens v.Stevens, Davis v. Davis and Vose v. Vose were matrimonial actions — cases that primarily involved a marital status asserted as such. In a case of that character the court has been constrained to declare the real fact of the relationship of the man and woman in accordance with the public policy of the State no matter what the consequent hardship to either of them.
Starbuck v. Starbuck, Bell v. Little, Brown v. Brown and Hynes v. Title Guarantee Trust Co. were not matrimonial actions. These were private suits. The claim in each case — though predicated of a marriage — was personal to an individual party. Hence room was found for consideration of equitable inducements conceived as affecting only the several parties to the litigation. (So, Matter of Swales, 60 App. Div. 599;172 N.Y. 651.)
Once you accept the rigor of our settled applicable rule of Conflict of Laws there is no disputing that the foregoing categories have a warrant that runs deep in the law. "Marriage being a public institution of universal concern, and each individual marriage or its dissolution affecting the rights not only of the husband and wife but of all other persons, the court sitting in a divorce cause should regard the public as a party thereto, and so far protect its interests as not to suffer the decree for dissolution or suspension to pass contrary to the real facts and justice of the case." (2 Bishop on Marriage, Divorce and Separation, § 480.) For the same reason judgment in a matrimonial action may not go by default and (though the defendant be absent) a hearing must none the less be had therein that in essence *Page 364 is a trial. (See Redfield v. Critchley, 277 N.Y. 336, 341.) In any other view, even a valid marriage might in effect be dissolved or altered by the parties themselves contrary to the declared public policy of the State. (Dom. Rel. Law, § 51.) No comparable consequences have been apprehended where (as in the cases of the second category) the action was not a matrimonial action but had for its first objective some collateral advantage claimed individually by a party in the role of a spouse.
The present plaintiff does not sue for support merely. A wife has no such remedy in this State. (Johnson v. Johnson,206 N.Y. 561.) This action is the purely statutory action for a separation. (Civ. Prac. Act, art. 69.) Any suggestion that the court should in some fashion take account of the needs of the defendant's first wife (who is not a party) cannot alter the case. This action is a matrimonial action. (Civ. Prac. Act, art. 70.) It belongs in the first of the foregoing categories.
My conclusion is that the defense here challenged is valid. It may be that the law will be bettered by the contrary ruling that the defendant must stand by a relationship with the plaintiff which she is free (and always was free) to nullify. (Lefferts v. Lefferts, supra; Davis v. Davis, supra.) But it is not the function of courts to make such supposed improvements. "Their general duty is not to change but to work out the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds, with such consistency as he may be able to attain." (HOLMES, J., in Stack v. N.Y., N.H. H.R.R. Co., 177 Mass. 155, 158.)
Perhaps a word should be added respecting Guggenheim v.Guggenheim (201 N.Y. 602) and Kelsey v. Kelsey (204 App. Div. 116; 237 N.Y. 520). The foreign divorce decree involved in the Guggenheim case was valid in this State. (See Guggenheim v. Wahl, 203 N.Y. 390.) In the Kelsey case each of the parties to the void foreign decree had remarried and (since either party was thus as guilty of *Page 365 adultery as was the other) the husband's action against the wife for a divorce was not to be sanctioned. (See Civ. Prac. Act, § 1153, subd. 4.)
The orders should be reversed, without costs, and the question certified answered in the affirmative.
LEHMAN, Ch. J., RIPPEY and Sears, JJ., concur with FINCH, J.; CONWAY, J., concurs in result; LOUGHRAN, J., dissents in opinion in which LEWIS, J., concurs.
Order affirmed, etc.