(dissenting):
Plaintiff and defendant, residents of Ontario, were there married, and there had a matrimonial domicile. They later separated, the defendant coming temporarily into the State of • New York, and later going to Pennsylvania, where he established a residence, and secured a divorce upon the ground of desertion. There was no personal service of the process, nor did the wife appear. Shortly after the decree was granted, defendant married another woman in Pennsylvania. At the time of the decree, and also at the time of the marriage, the plaintiff herein was still a resident of Ontario. Subsequently the defendant and his second wife settled in the State of New York. Still later, when she had discovered that fact, plaintiff herein also came into this State, and, as the court below has found, did so for the purpose of gaining a residence here in order to bring this action for divorce.
If I rightly understand the holding about to be made, it is that the marital status of the plaintiff under the Pennsylvania decree and subsequent marriage, was definitely established by the law of Ontario, where she then resided; that that law refused to recognize the validity both of the decree and the marriage; that plaintiff, when she came into the State of New York and became a resident here, brought with her that marital status; and that our courts are bound to recognize it and to protect it.
From that holding I dissent because I find no authority in this State which has gone so far. In Ball v. Cross (231 N. Y. 329) the court was considering the marital status of a woman who had no domicile in New York. The court said, in substance, that her status under a foreign decree obtained against her by her first husband was to be determined by the law of her domicile at the time the decree was granted. “ If the State of which she was then a citizen recognizes such a decree as that obtained in Nevada, and gives it full force and effect, then it is not for us to say that *365it is void as to her. It is for that State to determine what its policy requires. It is the final judge as to how far, as to its own citizens, the principles of comity shall be applied. If the defendant is freed of all the obligations of the Missouri marriage in the State of her domicile, she is freed everywhere.”
In that language I find no implication that the status so determined would necessarily be conclusive on us should she abandon that domicile and become a citizen of this State. In that event the court would have to deal with the foreign decree as it affected a citizen of this State, not as it .affected a citizen of some other State. There would then be involved the public policy of New York. Then, in short, it would be for us, and not for some other State, to say whether effect should or should not be given to the foreign decree. In Hubbard v. Hubbard (228 N. Y. 81) it was said: “ Generally speaking, each State when unrestrained by the Federal Constitution has the right to adjudge and declare the marital status of those residing and domiciled within it. * * * Whether or not the operation of a foreign decree of divorce in a given case will contravene the policy or wrong or injure citizens of the State is exclusively for its courts to determine. They aré the final judges of the occasions on which the exercise of comity will or will not make for justice or morality. The exercise rests in sound judicial discretion, guided and controlled by the policy of the State, relevant judicial decisions and the circumstances of the case.”
Let us consider those guides as they affect the plaintiff in this case, who was the defendant in the foreign action.
In New York it has long been the settled policy and law to refuse recognition to a foreign judgment affecting the marital status of one of our citizens, based upon grounds insufficient for that purpose here, unless there was personal service of process on, or appearance by him in the foreign jurisdiction; or unless that jurisdiction was the matrimonial domicile. (Olmsted v. Olmsted, 190 N. Y. 458; affd., 216 U. S. 386; Winston v. Winston, 165 N. Y. 553.)
But since that rule was formulated only for the protection of the citizens of New York, relevant judicial decisions have said that it might be invoked as a basis of decision only by one who was a citizen of this State at the time the foreign decree was rendered, or at the time when a subsequent marriage was contracted. (Percival v. Percival, 106 App. Div. 111; affd., 186 N. Y. 587; Kaufman v. Kaufman, 177 App. Div. 162; Schenker v. Schenker, 181 id. 621; affd., 228 N. Y. 600; Kaiser v. Kaiser, 192 App. Div. 400; affd., 233 N. Y. 524; Powell v. Powell, 211 App. Div. 750.)
In other words, recognition of the validity of such a divorce *366decree against a person who was not a citizen of New York at the time, seems to have been as much a part of our public policy as its non-recognition where the one affected was a citizen here.
The decision in Ball v. Cross (supra) has modified the rule of recognition by holding that where the status of a non-resident is in controversy here, we will accept the status as fixed by the law of that person’s domicile at the time the decree was made. We may not, in such a case, say that our policy requires us to recognize its validity, because our policy is not at all involved.
The decision of this court in Matter of Caltabellotta (183 App. Div. 753), regardless of what was said in the opinion, may be sustained within that modification, because the petitioner, whose status was under consideration, was a citizen of Pennsylvania. She had been a citizen there when the divorce decree and subsequent marriage took place. Her status in the State of her domicile was recognized and accepted by this court.
But, except as so modified, the policy and the law of this State seem to be unchanged. When, subsequent to the foreign decree and marriage, plaintiff came to New York and became a citizen here for the purpose of securing a divorce, she necessarily offered her status for determination by our courts, in accordance with our own public policy. That policy has been to recognize the validity of the foreign decree, except as surrounding circumstances might lead in the interest of justice and morality to a contrary result. If the rule is to be otherwise it is for the court of last resort and not for us to say so.
I find nothing in the surrounding circumstances of this case to render inapplicable the usual rule of recognition. The invalidity of the Pennsylvania decree for fraud is not before ús. That issue was not litigated, nor is there any finding thereon. Moreover, the fact that the plaintiff came here solely for the purpose of bringing the action lends color to the apprehension expressed in Powell v. Powell (supra, 756) that New York may become a mecca for certain types of divorce pilgrims.
The judgment should be reversed, and the complaint dismissed.
Taylor, J., concurs.
Judgment affirmed, with costs.