I reach the same conclusion as my associates but by a different course of reasoning. Before the opinion of Mr. Justice Woodward was presented to my associates and to me I had written the following opinion and I still adhere to the views therein expressed.
. The appeal involves the single question whether a decree of a *375Probate Court in Massachusetts, dismissing a proceeding instituted by the plaintiff against the defendant for her separate support, constitutes res judicata in this action which was subsequently brought by her to annul a judgment of divorce rendered in an action brought by the defendant against the plaintiff.
Plaintiff alleges that she was married to the defendant on October 30, 1884, at Brooklyn, by John Courtney, a justice of the peace, and cohabited with him up to June 1, 1891; that in 1887, the defendant, with fraudulent intent, told her that his family would not recognize such a marriage, and that a ceremonial marriage must take place before a clergyman ; that in order to have such marriage take place the previous marriage would have to be annulled; that proceedings for such purpose would be merely formal and that the plaintiff need not pay any attention thereto; that, relying upon such statement, she paid no attention to an action which was instituted against her by the defendant in December, 1887, in which a judgment was entered in April, 1888, annulling the Courtney marriage, and that the parties continued to live together till June, 1891, the defendant reiterating his promise to have a marriage ceremony, which, however, never took place.
The complaint further sets out that • in 1879, when the plaintiff was under sixteen years of age, at a social gathering in Providence, R. I., in a spirit of fun a sham marriage ceremony was performed between the plaintiff and William C. Morrison, but that the person who performed the ceremony had no authority under the laws of Rhode Island to perform a marriage ceremony, the plaintiff being a minor under sixteen years of age; that within an hour after the ceremony the parties separated and the plaintiff returned to her home in Massachusetts, and nothing further was heard of a marriage until two months afterward, when Morrison called on the plaintiff’s parents and claimed that the ceremony was a valid marriage ; “ that the said Morrison urged his claim with such persistency that the plaintiff went to live with him in the city of .Boston, Massachusetts, and lived with him for a period of six months, but left him before she reached the age of seventeen years;’’-that as the plaintiff was a minor under the age of sixteen years, and there was no consent of parents or guardian and no license and no record, the alleged marriage with Morrison was null and void; that the defendant *376made inquiries to determine whether there was a' valid marriage, and became satisfied that' there was not, and that he knew - all -these facts when the marriage before Judge Courtney occurred.
The course pursued at the trial renders it unnecessary to detail the allegations of the answer except as to the fifth defense therein. The. record contains the following statement: “ It was suggested by defendant’s counsel in open court that the issues raised by the fifth defense pleaded in the defendant’s answer should be tried first, and-' if the court should hold that defense to be insufficient, the other issues should be tried afterwards, and the court so directed.”
The issue raised by the-fifth defense was that the defendant had always been a resident of Boston, Suffolk county, Mass., and that in February,-1895, the plaintiff commenced an action against him in the Probate Court of that county ‘(the said court having: jurisdiction), alleging that she was his lawful wife and that, without just cause, he had failed to support her, and praying such order as might be deemed expedient concerning her support. By order of the: court the plaintiff was required to file specifications as to the alleged marriage, in pursuance óf Avhich she set up that she was married on October 31, 1884,’to the defendant by Judge Courtney, in Brooklyn “ And further that a legal marriage according to the laws of the State of if. V, was- entered into in that State between your petitioner and said Edward Everett on or about the 15th day.-of April, A. D. 1888, by mutual consent and consummation and acknowledgment and cohabitation in that State; and such consent,, acknowledgment-and cohabitation continued in that State and also-in this Commonwealth from the said 15th day of April, 1888, to-the 30th day of May, 1891, at which time he deserted her and said marriage is still of legal force and effect.”
The defendant answered, admitting that a marriage ceremony had taken place before Judge Courtney, and averring that on April 4, 1888-, by decree of the Supreme Court of this State said supposed marriage was decreed null and void, on the ground that the plaintiff “ was at the -'date of said supposed marriage a married woman, and the legal wife of one William G-. Morrison.”
At the present trial, the evidence offered in support of the fifth, defense consisted of such portions of the Constitution and laws of Massachusetts' as confer jurisdiction of .the proceedings upon the= *377Probate Court of that Commonwealth, an exemplified copy of the record of the Probate Court and the explanatory testimony of counsel who appeared for the respective parties. The decree of the Probate Court reads as follows:
“ Commonwealth of Massachusetts.
“Suffolk, ss.
“ At a Probate Court holden at Boston, in and for said county of Suffolk, on the twenty-fifth day of March, in the year of our Lord one thousand eight hundred and ninety-seven,
“ On the petition of Georgia L. Everett of Boston, in said county, the wife of Edward Everett, of said Boston, praying that said court will make such order as it deems expedient concerning her support, said Edward Everett having appeared by his attorney, and
“ It appearing to the court after hearing thereon, that the prayer of said petition should not be gz’anted.
“ It is ordered that said petition be dismissed.
“ROBERT GRANT,
“ Judge of Probate Court.”
The learned justice at Special Term held that the decree of the Probate Court was a determinatioiz on the merits; that it was a conclusive determination that the plaintiff was mazuded to Morrison at the time of the Courtney ceremony, and thereupon directed the dismissal of the complaint; and from the judgment entered thereon the plaintiff appeals.
Our decision of this appeal must rest upon a determination of the question whether the decree of the Probate Court was a decision upon the merits or simply a nonsuit. In Genet v. Delaware & Hudson Canal Co. (170 N. Y. 278) Chief Judge Parker, speaking for the court, said (p. 279): “ It is not sufficient for a party who sets up a pz-ior judgment as a bar or seeks to introduce it,as conclusive evidence to produce a record showing a judicial determination in his favor of the question in litigation. He must further show, and by the judgment roll, that the judgment was l'endered upon the merits and cause it to appear that the question was a material one in the former action.”
Section 1209 of the Code of Civil Procedure reads: “ A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does ziot pz’event a new *378action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon the merits.”
In Clapp v. Thomas (5 Allen, 158) Judge Metcalf cited with approval what was said in March on Arbitraments, 215, that a non-suit “ is but like blowing out of a candle, which a man at his own pleasure lights again.”
The Code makes no distinction between domestic and foreign-judgments. Judge Cullen pointed out in Genet v. Delaware & Hudson Canal Co. (163 N. Y. 173) that it is stated in the codifiers’ notes that the object of the section (1209) was to make the rule as to nonsuits which obtains in actions at law applicable to actions in equity. So we must apply the rule stated by Judge Pabkeb to the decree of the Probate Court, and as it does not appear by the judgment roll that the judgment was rendered upon the merits, hold that it was merely a nonsuit.
It is said in Freeman on Judgments (Vol. 1, [4th ed.] § 273) that the rule is now generally conceded that parol evidence may be received for the purpose of showing whether a question was determined in a former suit and that the estoppel extends, beyond what appears on the face of the judgment, to every allegation which, having been made on one side and denied on the other was at issue and •determined in the proceedings. So, doubtless, the testimony of the lawyers on both sides in the Probate Court was introduced on the present trial without objection, for the purpose of showing that by the practice of the Probate Court its decree involved the question whether the plaintiff was in fact the wife of the defendant, and that such question was material to the decision, as stated in the Genet •case. In this view, the course of the' trial in the Probate Court •becomes material. The plaintiff alleged that' she was the wife of the defendant. Under order of the court she specified both the Courtney marriage arid a subsequent common-law marriage. Defendant’s counsel introduced the judgment of - our Supreme Court, annulling the Courtney marriage. Plaintiff’s counsel in the Probate Court seems to have conceded that this was a bar to her cause of action, and he made no reference to the common-law marriage, but asked the court to insert in the decree á clause that such dismissal was without prejudice. This was not done, and -the decree is by its terms simply a dismissal and not a decree upon the merits.
*379One of the counsel for the defendant before the Probate Court testified on the trial of the present case that .“Under the decision ' of the court made that day, Mrs. Everett could come in again as I understand it, provided she in the meantime had that decree of the Supreme Court and that record annulled and reversed. While that record and decree stood as it was when we introduced it into the case — while that stood in that way, this was a final decree, but the court stated in words substantially to this effect that it would not say she could not come back again if the New York decree, which 1 have referred to, was reversed or set aside. Otherwise not, as I understood the court—final except for that reason.”
If the decree is in the nature of a nonsuit, it is not res judicata upon the fifth defense before the Special Term. It is true that the plaintiff’s petition was necessarily based on the fact of a valid and subsisting marriage between her and the plaintiff, and that the Probate Court was called upon to decide that question and did decide it in favor of the defendant by giving faith to the judgment of our court, but the attention of the Probate Court does not seem to have been called to the fact that the allegation or specification of the petitioner also alleged a common-law marriage. No evidence was offered in the Probate Court upon that subject. The proceedings seem to have been conducted solely with relation to the Courtney ceremony and without reference to the common-law marriage.
We must not lose sight of the fact that the present action is brought to annul the decree of April 4, 1888, which annulled the Courtney ceremony. There is a prayer that it be adjudged and decreed that “ the marriage contract heretofore made between the plaintiff and the defendant is still binding, and that the marriage between this plaintiff and the defendant is still in full force and effect.” This, however, evidently relates to the Courtney marriage, and not to any common-law marriage.
It is clear to me that the decree of the Probate Court was simply as for a nonsuit and is not res judicata in the present action. It follows that the judgment should be reversed.
■ Judgment reversed and new trial granted, costs to abide the final award of costs.