Appeal by plaintiff from a judgment of the Supreme Court, entered in the Kings county clerk’s office on November 1, 1935, dismissing the complaint on the merits, after trial at Special Term, upon default of defendant in appearance and answer or motion.
Action for divorce. Judgment in the form of a so-called “ order ” dismissing the complaint reversed on the law and the facts, without costs, and judgment directed for the plaintiff for the relief demanded in the complaint. Findings of fact and conclusions of law in accordance herewith will be made. The defendant defaulted and the plaintiff, upon adequate proof, was denied judgment on the theory that according judgment to him involved an attack by him on the validity of a prior divorce procured in Mexico. The Mexican proceedings were based on the consent of both.the plaintiff and the defendant under circumstances that rendered the decree wholly void. The relief which plaintiff seeks in this action is not inconsistent with his position in the void Mexican proceedings. His procedure herein involves no attack on the prior invalid decree. He seeks no advantage from the Mexican proceedings based on a position contradictory to his acts in that proceeding — nothing to the disadvantage of the wife or her estate; therefore, he is not estopped to seek a dissolution of the marriage status on grounds recognized in this State. A different situation would exist if he were taking an inconsistent position and seeking to gain an advantage from the change of position, such as was the situation in Starbuck v. Starbuck (173 N. Y. 503) and similar cases. Hence the rule in that case should not be applied here. This view will not offend our public policy and will enable the wife to take steps to put her present status on a firm and lawful basis. Lazansky, P. J., Young and Carswell, JJ., concur; Hagarty, J., with whom Davis, J., concurs, dissents and writes for affirmance. Settle order on notice.