The action is for separation by the wife against her husband and for suitable support. By his answer the defendant denies the existence of the marriage and alleges that the plaintiff had a husband living at the time of her alleged marriage to the defendant.
The question presented now is the sufficiency of the second defense contained in the defendant’s amended supplemental answer. That defense alleges that in this action the plaintiff had made a motion for alimony pendente lite in which one of the issues tendered was the validity of the marriage of the parties, upon which, of course, would depend the plaintiff’s right to alimony. The court referred that issue to a referee to take testimony and to report. The referee conducted hearings, in which witnesses for both parties were examined and cross-examined and in which exhibits were received in evidence. He found, and so reported to the court, “ that no marital relation exists between the plaintiff and defend*524ant.” The report was confirmed by the court, resulting in the denial of the plaintiff’s motion for temporary alimony by an order duly entered to that effect, from which no appeal was taken by the plaintiff. The defendant accordingly alleges, and the court at Special Term has held, that the order entered on the plaintiff’s motion for temporary alimony constitutes a determination that the parties are not married, which is res adjudicata herein.
I am unable to concur in this conclusion, which gives final and irrevocable effect to a proceeding which is merely tentative and provisional. In my opinion the doctrine of res adjudicata applies only to judgments and to final orders. Such were the orders under consideration in all the decisions on which the respondent relies. (Williams v. Barkley, 165 N. Y. 48; Dwight v. St. John, 25 id. 203; Matter of Whaley v. Perkins, 231 App. Div. 502.) The doctrine does not extend to orders which are interlocutory or incidental, the purpose of which is to regulate the rights of the parties pending a full determination of those rights by final judgment. (Brinkley v. Brinkley, 50 N. Y. 184, 202; Webb v. Buckelew, 82 id. 555; 34 C. J. 763.) Otherwise the decision on an application for a provisional remedy might control the final judgment and the rights of the parties for all future time. It is not decisive that the provisional remedy is granted or refused after a hearing in which witnesses are called to testify rather than upon affidavits. A summary judgment is conclusive upon the parties even though granted upon affidavits, but an order refusing an attachment, or a temporary injunction, upon the ground that a cause of action does not exist, would not be so even though witnesses had testified. What is decisive is the nature of the proceeding and whether its purpose is to adjudicate the issues with finality. (Everett v. Everett, 180 N. Y. 452; Howell v. Mills, 53 id. 322, per Allen, J., p. 334; Easton v. Pickersgill, 75 id. 599; Freeman Judgments [5th ed.], § 717 et seq.) Compare also rule 107, subdivision 5, which is limited to a “ final judgment or decree.” Moreover, the report of the referee in such cases, though made after testimony has been taken, is advisory merely and may be disregarded by the court.
Here the aim of the proceeding was-merely to determine whether the plaintiff should be awarded alimony pending a final decision of her rights by the judgment eventually to be entered in the action. The reference and the order were for that purpose only. Yet the decision on that motion is now held to be res adjudicata of the final judgment. The order which was to remain effective only until the entry of final judgment is made to determine conclusively what that judgment shall be. This result is destructive of substantial rights. For instance, the contested issue of marriage *525could not, except by consent of both parties, have been referred for final determination to a referee. The right of appeal from an order denying a motion for temporary alimony also is more restricted than would be the right of appeal from a final judgment. The effect, however, of the decision in this case is that both the result of the litigation and the opportunity to appeal are made to depend upon a reference ordered in connection with the determination of a motion for temporary alimony to which neither party might have been willing to consent.
The order should be reversed, and the motion granted.
Order denying plaintiff’s cross-motion to strike out the second defense in the amended supplemental answer affirmed.