This action was brought by the plaintiff for a judgment declaring that she was the wife and is now the widow of the decedent William J. Shea, and that as his widow she is entitled to her intestate share of his estate. *534From the pleadings and the proof adduced at a previous trial, it appears that plaintiff’s claim is predicated upon a common-law marriage to the decedent, allegedly entered into outside the State of New York subsequent to her divorce from her former husband, John A. Kilgallon.
Defendants now seek to attack the validity of plaintiff’s divorce from Kilgallon on the' ground that the court of the State of Illinois which rendered the decree was without jurisdiction by reason of the fact that neither of the parties to the divorce proceeding was a bona fide resident of that State. In support of their attempt to impeach the Illinois judgment, and in an endeavor to show that the parties thereto were residents of this State, the defendants have obtained an order for the examination of Kilgallon before trial, primarily on the question of his residence and that of the plaintiff for the three years preceding the institution of the Illinois action. On this appeal from that order, plaintiff’s principal contention is that the Illinois judgment is not subject to collateral attack and is a valid and binding determination because the witness Kilgallon, who was the defendant in that proceeding, had appeared therein and the court rendering the decree had thereby obtained jurisdiction.
The question thus presented is whether a judgment of divorce rendered by a court of another State having jurisdiction of the persons of both parties must be recognized by the courts of this State, where it is claimed that the parties were not domiciled in that State but were in fact residents of the State of New York. In my opinion, that question must be answered in the negative. The power of a court to grant a decree of divorce is based fundamentally upon jurisdiction of the subject matter, which in turn depends upon the domicile in the State of at least one of the parties to the action. (Andrews v. Andrews, 188 U. S. 14.) The appearance of the parties, in the absence of domicile, cannot confer jurisdiction to render the judgment. (Andrews v. Andrews, supra; Matter of Lindgren, 293 N. Y. 18; Solatoff v. Solotoff, 269 App. Div. 677.) This is based upon the elementary rule that where jurisdiction of the subject matter is lacking, it cannot be granted by consent of the parties. (Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315.)
The importance of domicile as the decisive element upon which jurisdiction of the subject matter depends, is emphasized in Williams v. North Carolina (325 U. S. 226, 229) wherein it is stated: “ Under our system of.law, judicial power to grant *535a divorce — jurisdiction, strictly speaking — is founded on domicil.” Cases such as Kinnier v. Kinnier (45 N. Y. 535) where the appearance of the parties was considered conclusive on the question of jurisdiction, and the cases following it, must be deemed to have been overruled by Andrews v. Andrews (supra) and Matter of Lindgren (supra). Even in the Kinnier case (supra), the necessity of jurisdiction over the subject matter was recognized and such jurisdiction in the Illinois court was assumed; without, however, any consideration of that question as affected by the domicile of the parties.
The basic principles which are here involved are that lack of domicile of both parties to an action for divorce in the State in which the action is commenced deprives the courts of that State of jurisdiction of the subject matter; that such jurisdiction cannot be conferred by appearance or consent; and that a party against whom the judgment is offered may show that it is void on the ground that the court which rendered it lacked such jurisdiction.
The majority opinion recognizes that a decree of divorce obtained in another State upon constructive service is subject to attack. But if jurisdiction to render the judgment.— jurisdiction of the subject matter — depends upon domicile, as seems to be authoritatively established by the cases cited above, the question of jurisdiction of the person becomes of relatively minor importance (Andrews v. Andrews, 188 U. S. 14, 39, supra), so long as the requirement of due process is met. Regardless of defendant’s appearance, the fundamental inquiry must be whether at least one of the parties was a bona fide resident of the State in which the action was begun. The appearance of the defendant may be a determinative factor where the doctrine of estoppel or res judicata is involved, but those questions are not presented on this record, as the defendants were not parties or privies to the challenged Illinois decree..
Once we accept the propositions that domicile is essential to jurisdiction, and that a judgment rendered without jurisdiction is a nullity, it follows that the. defendants may establish the jurisdictional defect in the Illinois action by proof that the parties thereto were not residents of that State. In determining the question of domicile, the courts of this State may inquire into the status of a party as a bona fide resident of the granting State, and such inquiry is not precluded by the appearance in the action of the nonresident defendant. Nor are our courts foreclosed from examining the question of domicile by the determination of the other State that it had power to award the
*536decree. “ Otherwise, as was pointed out long ago, a court’s record would establish its power and the power would be proved by the record.” (Williams v. North Carolina, 325 U. S. 226, 234, supra.) (Cf. O’Donoghue v. Boies, 159 N. Y. 87, 98.) The effect of a contest in the granting State on the jurisdictional issue is not here involved. (Cf. Davis v. Davis, 305 U. S. 32.)
These conclusions are in accord with the rule in other jurisdictions. (Estate of Davis, 38 Cal. App. 2d 579; Brill v. Brill, 38 Cal. App. 2d 741; Coe v. Coe, 316 Mass. 423; Ainscow v. Alexander, 39 A. 2d 54 [Del.].)
If we adhere to the basic legal principles which have been discussed, we need anticipate neither chaos in the law of divorce nor impairment of our social structure. On the contrary, short of uniform- divorce laws throughout the States, stability and finality can best be promoted by strict compliance with the rule that a court purporting to grant a decree of divorce must have jurisdiction of the subject matter before its judgment will be entitled to full faith and credit under the Federal Constitution.
The order appealed from, insofar as it permitted the defendants to examine the witness as to the residence of the parties to the Illinois divorce action, was therefore proper. I agree with the majority, however, that it was error to allow an inquiry into allegedly fraudulent testimony in that action concerning the acts of cruelty committed by the witness, upon .which the divorce was granted. The judgment may not be collaterally impeached on that ground. (Arcuri v. Arcuri, 265 N. Y. 358.) The order should be modified on the law by striking therefrom items 1, 3, 4(a), and that portion of item 4(b) reading “ and acts of cruelty committed by said witness in that State,” and as so modified the order should be affirmed.
Johnston, J., concurs with Carswell, J.; Nolan, J., concurs in the result; Lewis, P. J., dissents and votes to modify the order by striking therefrom items 1, 3, 4(a), and that part of item 4(b) reading “ and acts of cruelty committed by said witness in that State ”, and as so modified to affirm the order, with opinion in which Hagarty, J., concurs.
Order reversed on the law, with $10 costs and disbursements, and the motion denied, with $10 costs. [See post, p. 906.]