(dissenting in part). In the first appeal, from the order granting plaintiff’s motion to punish defendant for contempt, I concur in all respects with the reversal of said order. In the second appeal, from the order denying the motion to annul the provisions of the former separation agreement, I dissent in part and vote to affirm.
One of the questions on the second appeal is whether the support provisions in a judgment of separation secured by the plaintiff wife in this State survive a later judgment of *357divorce, which she obtained in the courts of Nevada. The judgment of divorce was rendered upon constructive service of process on the husband, and he did not appear in the Nevada action.
The husband does not question the wife’s domicile in Nevada at the time that the divorce was obtained and thus concedes the jurisdiction of the Nevada court to dissolve the marital status. This does not mean, however, that he may not attack domicile later, or that he recognizes the validity of the Nevada decree insofar as it attempts to award alimony to his wife. The amount of alimony which the Nevada court purported to award was identical with that provided by the New York separation decree. In fact, both awards followed the provisions of an earlier property settlement agreement between the parties. While we know that the Nevada decree expressly provided against merger of the agreement, it is not clear whether a like provision was contained in the New York separation judgment.
This case differs from Estin v. Estin (296 N. Y. 308, affd. 334 U. S. 541) and Lynn v. Lynn (302 N. Y. 193, certiorari denied 342 U. S. 849) with respect to the facts affording jurisdiction to the divorcing State.
In the Estin case the husband went to Nevada, after the wife had obtained a judgment of separation in New York. He obtained a divorce upon constructive service and without the appearance of the wife. However, in view of a finding that the husband was domiciled in Nevada, it was necessary to recognize the Nevada decree as effective to dissolve the vinculum of the marriage. Nevertheless, the Court of Appeals held that the support provisions of the New York separation judgment survived.
In the Lynn case the husband commenced a suit for divorce in Nevada, after the wife had obtained a New York judgment of separation containing provisions for her support. The wife, however, appeared in the Nevada suit, so that the court had personal jurisdiction over both parties and the entire matrimonial controversy. A divorce was granted, but it made no provision for maintenance. The Court of Appeals held that under such circumstances the wife could no longer avail herself of the New York judgment, but must move in the courts of Nevada for relief.
There can be no doubt that the law of this State as it stood prior to Estin v. Estin (supra) would require us to hold that the wife’s separation decree and its provisions for alimony must yield to the overriding effect of the divorce decree. Ample *358authority is cited in the prevailing opinion to establish that former rule. Though some of the cited cases might be distinguished from the present one on the facts, I do not question that the rule in this State prior to Estin v. Estin (supra) was that a judgment of divorce superseded a separation decree and voided its provisions for maintenance. In fact, it was my view that the existence of such earlier rule required avoidance of the separation decree in Kreiger v. Kreiger (see 271 App. Div. 872), but the majority of this court and the Court of Appeals following the rule of the Estin case upheld the survival of the separation decree (Kreiger v. Kreiger, 297 N. Y. 530, affd. 334 U. S. 555).
The Estin decision, however, established a new rule of New York law sometimes referred to as the doctrine of “ divisible divorce ’ ’ in regard to the survival of a separation decree after the dissolution of marital status (see 296 N. Y. 308, supra). This change in the former law was discussed by the Supreme Court of the United States in Estin v. Estin (334 U. S. 541, supra). Nevertheless the Supreme Court upheld the right of New York to protect a domiciliary wife by asserting the survival of its separation judgment as against an ex parte divorce in a sister State effective to dissolve the marital status.
I think that the present case is like the Estin case in that the divorcing court had no jurisdiction except to dissolve status. It is unlike the Lynn case where the court had complete jurisdiction over the persons of all the parties and thus might adjudicate such matters as alimony and custody of children.
I think we should hold that the support provisions of the New York judgment of separation survive under the circumstances of this case. Our earlier decisions to the contrary were based upon the concept that the survival of a separation judgment depended upon the continuance of the marital status, but the Estin decision has altered that view. I see no sufficient reason to apply the old rule of lack of survival in the instant case merely because the wife sought and obtained the divorce in Nevada. The wife violated no rule of our public policy by establishing domicile in Nevada and obtaining a divorce (Glaser v. Glaser, 276 N. Y. 296; Matter of Rhinelander, 290 N. Y. 31, 36). She should not be penalized for such action, especially where it would jeopardize the interests of New York to do so. State policy requires that some provision be made for the support of a former wife in a divorce decree in the absence of misconduct on her part. In this respect our statute may be *359said to recognize that the right of support is not necessarily tied to continuation of status (Civ. Prac. Act, § 1155).
The three fundamental facts that would justify our upholding survival of the separation decree are: (1) the ineffectiveness of the award by the Nevada court, which had no jurisdiction to render an in personam judgment directing the husband to pay alimony; (2) the interest of the State of New York in securing support for a domiciliary wife; and (3) the fact that there is no incongruity between the two judgments as to their provisions for support.
As to the first factor: We have a judgment that is void in respect to the direction for alimony not only in the state of rendition but in every Other jurisdiction (Jackson v. Jackson, 290 N. Y. 512; Pennoyer v. Neff, 95 U. S. 714; 3 Freeman on Judgments [5th ed.], § 1444; Parker v. Parker, 211 Mass. 139). Nor would the full faith and credit clause of the Federal Constitution (U. S. Const., art. IV, § 1) and the implementing statutes require recognition of the Nevada decree for alimony (Estin v. Estin, 334 U. S. 541, 548, supra; Pennoyer v. Neff, supra; and see, also, concurring opinion of Mr. Justice Douglass in Esenwein v. Commonwealth, 325 U. S. 279).
As to the second factor of State policy: The wife in the case at bar is now at least a New York domiciliary, though we must presume she was domiciled in Nevada at the earlier date when the divorce was obtained. She would have no effective directive for maintenance by her husband, who likewise resides here, unless we uphold the support provisions of the separation decree.
As to the third and final factor: The support previsions are the same in both judgments. The husband apparently is seeking to avoid payment under either. A single payment would satisfy both.
The courts of this State should not be prone to deprive a wronged wife of the assurance of support, unless some controlling principle of law requires it or such action is necessary to serve the ends of justice. Of course, a wife’s remarriage would annul her right to support, and habitual living with another man might effect a like result (Civ. Prac. Act, § 1172-e). Neither of these situations exists here.
The main principle of law urged upon us as requiring an avoidance of the wife’s separation decree is that the doctrine of estoppel applies against one who resorts to a foreign court so as to prevent such person from denying jurisdiction or the validity of the judgment obtained (see Starbuck v. Starbuck, *360173 N. Y. 503). The rule of estoppel, however, is an arbitrary rule against conduct that would be intolerable, if permitted as between suitors (3 Freeman on Judgments [5th ed.], § 1438). But in a matrimonial dispute the State is an interested party as well as the individuals. Whether an estoppel should be allowed in a matrimonial action should depend at least in part on how it might affect the interests of the State in which the attack is made (Senor v. Senor, 272 App. Div. 306, affd. 297 N. Y. 800). In the Starbuck case the rule of estoppel was invoked against a wife attempting to assert a wholly private right, and she was not allowed to question the validity of a divorce obtained by her in order to assert a dower interest in property acquired by the husband during the course of his second marriage subsequent to the wife’s decree. This rule of estoppel has been said to be properly limited to preventing the spouse who obtained the divorce from questioning the validity of the decree as affecting status in order to support a private claim to property (Stevens v. Stevens, 273 N. Y. 157; Schouler Divorce Manual [Warren], pp. 592-593). The wife here is asserting a right to uphold a New York judgment for maintenance, which is not a private right, but one in which the State has a vital interest. Nor is this wife attempting to assert the continued existence of the marital status. She does not attempt to disavow her domicile in Nevada after obtaining a judgment of divorce from the courts of that State based on a representation of such domicile. If she were doing this, she might be guilty of the sort of intolerable conduct that would justify asserting the rule of estoppel or quasi-estoppel against her (see Caldwell v. Caldwell, 298 N. Y. 146). Here the wife, while adhering to her representation of domicile made to the Nevada court and without attacking the validity of the divorce, insofar as that court had jurisdiction of the subject matter and the parties, contends that the provisions for support in the New York separation judgment should survive.
The husband has not acted in reliance on the Nevada judgment to his injury, a circumstance frequently considered as essential in order to invoke the doctrine of true estoppel (Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285).
Another principle of law urged for denying survival of the New York decree of separation in the wife’s favor is the rule of res judicata that the last judgment should control. But that principle has no application where the last court has no jurisdiction over the defendant to render the judgment claimed as a bar (see Estin v. Estin, supra).
*361That a separation agreement exists and the wife can enforce the same by plenary action should not affect the case. In the first place, it is not clear whether the agreement merged in the New York separation judgment. But assuming it has not, the remedy of plenary suit afforded the wife would be far less effective to protect her and the State. In any event, the controlling principles would be the same in a case where no separation agreement exists.
Accordingly, I think that we should hold the rule of Estin v. Estin (supra) to be applicable in the present situation. Otherwise, we shall have the anomalous result that in a case where the husband resorts to a foreign court and secures a divorce on constructive service against a nonappearing wife (presumably for her fault), an earlier separation decree in the wife’s favor providing for her support survives to protect the wife’s rights to alimony, whereas in the case of a wife who resorts to a foreign State to secure a divorce in like manner (presumably for the fault of the husband), we deprive her of similar protection and leave her without effective provision for her maintenance. This seems to me not only illogical but too great a penalty to impose on a wife who in the eyes of the law is the innocent spouse and adjudged to have been wronged by the husband. It also involves a likely consequence to the State, which we should avoid, in that the obligation to support may be shifted from the husband to the sovereign in the event that the wife should become a public charge.
I see no distinction with respect to jurisdiction of the Nevada court in the matter of awarding alimony and that of awarding custody of the children. The power of the courts of Nevada to deal with these matters in matrimonial actions is granted under similar statutes (Nevada Compiled Laws, §§ 9462, 9465). The absence of power to adjudicate between the present parties was due to the lack of in personam jurisdiction, which was identical in both instances. In fact, the Nevada decree with respect to custody was different from the New York separation judgment, while it was identical with respect to alimony.
Accordingly, I dissent from that part of the decision in this case which grants the husband’s cross motion to vacate the support provisions of the separation decree previously awarded to the wife in this State. I concur in the reversal of the order punishing the husband for contempt. I vote to affirm the order denying the cross motion.
*362Glbnnon, J, P., concurs with Cohn, J.; Dore, J., concurs in part, in opinion; Callahan, J., dissents, in part, in opinion in which Shientag, J., concurs.
Order granting the motion to punish the defendant for contempt unanimously reversed and the motion, in all respects, denied. Order denying defendant’s motion to annul, vary and modify as of June 10,1951, the judgment of separation entered herein on March 31,1947, modified to the extent of eliminating from the said judgment all provisions for the support of the plaintiff Jane H. MacKay and, as so modified, affirmed. Settle order on notice.