(dissenting). The action has been brought by a wife to procure a permanent injunction against her husband restraining him from obtaining a Mexican divorce. Before us now is the dismissal of the complaint and denial of the motion for a temporary injunction to prevent the husband from proceeding with the divorce action he has instituted in Mexico.
The parties were married in New York City in 1942. They have two children and since their marriage have been continuously, and still are, residents of this State. Since 1954, the parties have in fact been last separated and the husband has expressed the wish to have a divorce and to remarry. To these wishes the wife has been rightfully resistant. In 1954, the wife obtained a judgment of separation from the husband under which *433she receives $750 a month for the support of herself and the children. Since the separation judgment, the husband has again tried, but without success, to persuade his wife to “ consent ” to a divorce and has offered her various financial incentives, all of which she has very properly declined.
There is no justification for the conduct of the husband in this case. The question that is involved, however, is whether, as a matter of policy, another remedy should be added to the several that a spouse has in matrimonial litigation. It has been the policy in this State to deny an injunction to restrain prosecution of a divorce action in a jurisdiction whose judgments are not entitled to full faith and credit.
The law has been clear, insofar as it is ever clear in the matrimonial field, that a spouse is not entitled to obtain an injunction to restrain the prosecution of a foreign divorce not entitled to full faith and credit in this State. (Goldstein v. Goldstein, 283 N. Y. 146.) That case, decided in 1940, held precisely that, and applied the rule to divorces sought in other States of the Union, and, by implication, to divorces sought outside the United States. Thereafter, following the two holdings by the Supreme Court of the United States in Williams v. North Carolina (317 U. S. 287; 325 U. S. 226) the rule no longer applies to divorces sought in sister States. (Garvin v. Garvin, 302 N. Y. 96; Pereira v. Pereira, 272 App. Div. 281.) The principle remained the same but its application was lifted in part, because, under the rulings in the Williams cases, divorce judgments in sister States were entitled to full faith and credit — at least, to prima facie full faith and credit — under the Constitution. The distinction between the Goldstein and the Garvin cases turns on whether the foreign divorce judgment was a nullity or whether it had a legal status that threatened the rights of the resident spouse against whom the migratory spouse had obtained a divorce. It was always recognized that a foreign divorce, no matter how null as a matter of law, would have some practical impact on the resident spouse. But it was held, nevertheless, that a divorce judgment, null in law, would not supply a basis for injunctive relief. Where there was practical impact, the resident spouse, in proper time, could obtain a declaratory judgment upon a showing of such impact. (Baumann v. Baumann, 250 N. Y. 382.) As a consequence, nothing has occurred to change the application of the controlling authority of the Goldstein case to foreign actions which can only result in a divorce judgment entitled to no faith and credit in this State. In recent years the Special *434Terms have so held, uniformly, following what they believed to be the mandate of the appellate courts.*
There has been no change of circumstances which would warrant a change in policy. The orders should be affirmed.
Breitel, J.(dissenting). In dissenting, the following comment is added: With respect to the consideration of policy suggested by this case, we are obliged to look beyond its particular facts. Involved is that there is already a large number of remedies available to the wronged spouse. Notably, where the wronged spouse is a wife she is entitled to counsel fees. There is a hazard in multiplying remedies that increase the price, and the modes of collusion, at which “ freedom ” is bought, rather than serving to prevent the sale. The question remains whether any useful purpose will be served in adding another weapon to the large number now available to contestants in this area. The need is not for more weapons. The crying urgency is for greater effectiveness and realism in those that now exist. The goal is to protect the innocent spouse and the even more innocent children of the marriage, rather than to enhance the activity of those that are merely litigious for purposes ulterior to the preservation of the family. Perhaps that is not the situation in this case, but it is the situation in far too many of the cases in this area. It is submitted that the hazards are greater than any useful purpose to be served. Moreover, there has been much vacillation, and confusion compounded, in the field of matrimonial law, without compensating stabilization or rationality. It should not be added to in the absence of the strongest compulsion.
Peck, P. J., and Botein, J., concur with Bastow, J.; Cohn and Breitel, JJ., dissent in opinion; Breitel, J., dissents further in separate opinion.
Orders reversed, in accordance with the opinion herein, with $20 costs and disbursements to appellant. Settle order. [See post, p. 942.]
(Goldstein v. Goldstein, N. Y. L. J., July 6,1951, p. 32, col. 6, Dickstein, J.; Hess v. Hess, N. Y. L. J., Nov. 9, 1950, p. 1118, col. 7, Nathan, J.; Winikoff V. Winikoff, N. Y. L. J., July 17, 1950, p. 76, col. 6, Rabin, J.; Armetta v. Armetta, 68 N. Y. S. 2d 880, Colden, J.; Gaskell v. Gaskell, 189 Misc. 504, Hecht, J.; Newman v. Newman, 181 Misc. 256, Hallinan, J.; Borax v. Borax, 136 N. Y. S. 2d 164, Breitel, J.; Benton v. Benton, N. Y. L. J., Sept. 16, 1952, p. 495, col. 3, Breitel, J.; Fromer v. Fromer, N. Y. L. J., March 31, 1954, p. 8, col. 8, Rabin, J.; Kramer v. Kramer, N. Y. L. J., Dec. 16, 1954, p. 6, col. 5, M. M. Levy, J.; Lipman v. Lipman, N. Y. L. J., June 11, 1953, p. 1969, coll 2, McNally, J.; Sanguinetti v. Sanguinetti, N. Y. L. J., June 12, 1953, p. 1985, col. 6, Nathan, J.)