A first wife sues her husband and the woman he has remarried on the ground that the divorce the husband obtained from the first wife in Mexico was a nullity and that the remarriage to the second wife was likewise a nullity. Plaintiff wife appeals from dismissal on motion of her second amended complaint for legal insufficiency and on the ground that there is existing a prior final judgment which disposes of the merits raised by the pleading.
The complaint contains two causes of action. One is for declaratory judgment with respect to the nullity of the divorce and the remarriage; and the other is for annulment of the remarriage. The complaint also prays for incidental injunctive relief.
Plaintiff wife and defendant Presbrey were married in 1930. On March 12,1952 she started a separation action on the ground of abandonment. The couple entered into a separation agreement on July 3, 1952, and, thereafter, on November 3, 1952 a judgment of separation was rendered in favor of plaintiff wife in the Supreme Court, New York County, which incorporated the terms of the separation agreement. On June 13, 1952, prior to the separation agreement and the entry of a judgment of separation, defendant Presbrey procured a Mexican divorce from plaintiff. The wife alleges that she had no knowledge of this proceeding and, admittedly, she was never served nor did she appear. Defendants concede that the Mexican divorce is without validity. On June 18,1952 defendant Presbrey married defendant Martha Rountree. This too was still before the judgment of separation — indeed, even before the execution of the separation agreement.
Special Term, relying primarily on Garvin v. Garvin (306 N. Y. 118), held that the action would not lie and dismissed the entire complaint.
The first wife makes no serious attack upon the order insofar as it dismissed the cause of action for a declaratory judgment. Controlling is the Garvin case (supra). There a first wife sued her husband and his second wife, and asked for a declaratory *479judgment in the usual form with incidental injunctive relief. As in this case, the first wife in the Garvin case had obtained a separation judgment subsequent to the allegedly null Virgin Islands divorce and the null remarriage. As will be seen, it is significant that the remarriage, as here, was a void one and not a voidable one. Her pleading was dismissed on motion on the ground that a declaratory judgment was unnecessary, the marital status of the plaintiff wife having been fully and conclusively determined by the prior separation judgment.
Accordingly, that branch of the motion on which the first cause of action was dismissed was properly granted.
With respect to the second cause of action seeking the annulment of the remarriage to the second wife, plaintiff wife in this case invokes section 1134 of the Civil Practice Act which entitles a first spouse to obtain the' annulment of a void remarriage to another. In this connection plaintiff wife asserts that a court is without discretion to decline an annulment otherwise authorized by the statute.
Section 1134, upon which plaintiff wife relies, reads as follows : ‘ ‘ An action to annul a marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the lifetime of the other, or by the former husband or wife. ’ ’
The question is whether the statute mandates upon the court entertainment of the action and, in a pro forma case, the granting of the relief demanded, even though the wife’s status has been fully determined in the prior separation action, and the prior Mexican divorce and prior remarriage are, of necessity, void — void by implication of the judicial declaration in the separation judgment.
The order insofar as it dismissed the second cause of action was also properly granted and the order, therefore, should be affirmed in all respects.
There are two basic grounds on which the cause of action for annulment falls. Both of these are discoverable from the pleading in accordance with the precedents that have now become well established in this field. Nor would a trial develop any other facts or factors which would serve to distinguish this case from the applicable precedents. In fact, it appears also that there are no disputed material facts. Defendants concede arguendo and in truth the allegations of the complaint, except only as to plaintiff wife’s knowledge of the husband’s divorce and remarriage prior to the separation judgment.
*480The first ground is that the res judicata effect of the first wife’s separation judgment precludes the granting of any relief such at that sought in this action. The second ground is that there is some discretion reposed in the court in entertaining actions under section 1134 of the Civil Practice Act. This is so even where the action is only between the parties to the marriage attacked as null. It is so in even greater degree when the action is brought by a first spouse to annul the marriage between defendant spouse and another. Thus, in the exercise of discretion the court will not render an unnecessary judgment:
It is ancient law that a judgment in rem is res judicata as to all the world with regard to the res or status that is determined therein. In a matrimonial action the condition of marriage or nonmarriage is involved. An essential issue is, therefore, one of status — or, put another way, there is a marital res subject to in rem jurisdiction. As a consequence, in ordinary circumstances a judgment determining marital status is binding on the whole world, and it is not confined in effect to the immediate parties to the action in which the judgment determining status was rendered. (Matter of Holmes, 291 N. Y. 261; Urquhart v. Urquhart, 272 App. Div. 60, affd. 297 N. Y. 689; Restatement, Judgments, § 74, particularly Comment a; 50 C. J. S., Judgments, § 910, subd. c, par. (3); 30A Am. Jur., Judgments, § 136; Rediker v. Rediker, 35 Cal. 2d 796, 22 P. 2d 1 [Traynor, J.]; Brigham v. Fayerweather, 140 Mass. 411, 5 N. E. 265 [Holmes, J.]; Arm. 20 A. L. R. 2d 1163 et seq.-, cf. Ann. 87 A. L. R. 203 et seq.) For reasons that are readily apparent, and which are exampled in the Holmes and Rediker cases (supra), a divorce judgment determines only status of nonmarriage from the time of judgment but is not determinative of status prior to judgment. This, of course, presents no problem in applying res judicata to a separation judgment which rests upon a foundation of a marriage subsisting before and after the separation judgment. (Garvin v. Garvin, 306 N. Y. 118, supra-, Statter v. Statter, 2 N Y 2d 668; Cherubino v. Cherubino, 284 App. Div. 731.)
It therefore follows that the separation judgment obtained by plaintiff wife is determinative as to the whole world, that is, as to third parties. That separation judgment subsists not only as a judicial declaration between the parties to the separation action, but also as to any others, such as the second wife whose marriage to the husband antedates the judgment.
Moreover, the second wife is not a principal party defendant so much as she is an indispensable party codefendant to the action to annul the marriage by the defendant Presbrey with her. *481(Anderson v. Hicks, 150 App. Div. 289; Adams v. Vulovich, 191 Misc. 464; Feldman v. Intrator, 175 Misc. 632; Johnson v. Johnson, 13 Misc 2d 891). Since the principal defendant, the twice-marrying husband, is already bound by the separation judgment, no further relief is necessary as to him and, derivatively, the codefendant status of the second wife fails of purpose. On this analysis, the second amended complaint fails in both its causes of action.
However, because plaintiff wife places the emphasis she does on section 1134, and argues that its effect is mandatory on the court, further treatment of the question is required.
Section 1134 is the successor statute to several predecessors, the first of which was first enacted in 1824. (2 Rev. Stat. of N. Y. [1st ed.], part II, ch. VIII, art. 2, § 22 [p. 142].)* It was part of a comprehensive statute (ibid, § 20 et seq.) which was enacted, among other things, to codify the holding of Chancellor Kent that chancery had jurisdiction to entertain an action to annul a voidable marriage on grounds of which equity would take cognizance in the case of voidable contracts generally. (Wightman v. Wightman, 4 Johns. Ch. 343.) At that time there were no statutes in this State authorizing actions for annulment. In England such actions had lain in the ecclesiastical courts. But here, there were neither such courts nor were there statutory substitutes provided for the secular courts.
The new comprehensive statute was also designed to elaborate upon the dicta of the Chancellor in suggesting that certain kinds of void marriages would also be the subject of chancery relief as a matter of inherent jurisdiction. The validity of the dicta had been questioned. (Burtis v. Burtis, 1 Hopk. Ch. 557; 3 Rev. Stat. of N. Y. [2d ed.], 658, 659-660; see, also, ibid. 661.) It would appear, therefore, that the statutory remedy provided by section 1134 is not, historically, of exclusively legislative origin. It had its roots in the exercise of chancery discretion. The statute, moreover, was framed, in part at least, with reference to that inherent chancery jurisdiction and the discretionary power which is its vital principle.
Be that as it may, the Court of Appeals in Stokes v. Stokes (198 N. Y. 301), although holding on the facts involved in that case that the lower courts had erroneously exercised jurisdiction *482to decline an annulment, stated that in a proper case a court of equity would refuse to grant an annulment sought under one of the predecessor statutes to section 1134 (Code Civ. Pro., § 1745). Shortly before the decision in the Stokes case the Appellate Division in this department had held that the predecessor statute did not deprive the court of its equity discretion in entertaining actions brought under it. (Berry v. Berry, 130 App. Div. 53.) Notably, as here, the Stokes and Berry cases involved void and not voidable remarriages. Hence, the question of discretion does not turn on whether the subject of the action is a void or voidable marriage. It is true, however, that thereafter this court in Brown v. Brown (153 App. Div. 645), as a result of the holding in the Stokes case (supra) felt itself constrained to exclude the doctrine of equitable estoppel based on unclean hands.
For some time this particular judicial self-limitation on the exercise of discretion as laid down in the Brown case was questioned. (Slater v. Kenny, 176 Misc. 690, revd. on other grounds 265 App. Div. 963; Bays v. Bays, 105 Misc. 492; Tiedemann v. Tiedemann, 94 Misc. 449.) This accounts for the variation in consistency among the collected cases. (See, e.g., Zuckert v. Zuckert, 13 Misc 2d 893, cited by plaintiff-wife in this case.)
This particular limitation, however, upon the exercise of discretion under the predecessor statute and section 1134 has since evidently become the settled prevailing law. (E.g., Landsman v. Landsman, 302 N. Y. 45; Sophian v. Sophian, 279 App. Div. 651; Marion v. Marion, 277 App. Div. 1115; Villafana v. Villafana, 278 App. Div. 697, reargument of 275 App. Div. 810.) But the limitation has been one self-imposed by the courts, and has never been extended into a rejection of all equitable discretion or the exclusion of every species of equitable estoppel (ef., e.g., Krause v. Krause, 282 N. Y. 355; Carbulon v. Carbulon, 293 N. Y. 375).*
No appellate court has ever held that an action brought under section 1134, or its predecessor statutes, deprives the court of all discretion. The fact is that some discretion has been repeatedly and avowedly exercised, especially in cases in which the action is brought by the first spouse to annul a remarriage by the defendant spouse to another. (Packer v. Packer, 6 A D 2d 464, decided simultaneously with this case; Schneider v. Schneider, *483281 App. Div. 250.)* Most frequently, the comment in Stokes v. Stokes (198 N. Y. 301, supra) is made the basis for such exercise of discretion. (See, e.g., Shonfeld v. Shonfeld, 260 N. Y. 477; Graham v. Graham, 211 App. Div. 580; Reed v. Reed, 195 App. Div. 531, affg. 106 Misc. 85; Slater v. Kenny, 176 Misc. 690, revd. on other grounds 265 App. Div. 963, supra-, Bamberger v. Bamberger, 128 Misc. 1; Magee v. Nealon, 108 Misc. 396; Bays v. Bays, 105 Misc. 492, 502 et seq., supra; Tiedemann v. Tiedemann, 94 Misc. 449, supra; Johannessen v. Johannessen, 70 Misc. 361, 366 et seq.; Tober v. Tober, 157 Misc. 551; Bonney v. Bonney, 13 Misc 2d 866; but cf., in accord with Landsman v. Landsman, 302 N. Y. 45, supra: Anonymous v. Anonymous, 186 Misc. 772; Gough v. Gough, 13 Misc 2d 894.) The texts would seem to be in accord (3 Nelson, Divorce and Annulment [2d ed.], §§ 31.45, 31.46; 55 C. J. S., Marriage, §§ 49, 50, 51).
Before concluding the discussion on this aspect of the case it is also noteworthy that a cause of action which seeks an annulment of a marriage between a first spouse and another party consists of the same allegations, in substance, as a cause of action which seeks a declaratory judgment with respect to the same set of facts. Indeed, an action to annul such a third-party marriage under section 1134 is no more than a form of declaratory judgment, specifically authorized by the statute.
The parallel is evident, too, in the pleading in this case. The allegations in each cause of action are substantially the same.** It is only the reliance on the statute which is supposed to distinguish the second cause of action from the facts and the relief sought in the first cause of action. This reliance on the statute nowhere appears from the face of the pleading, as, of course, it need not.
*484In essence, then, there is no factual difference between a cause of action to declare a third-party marriage a nullity from one for ‘ ‘ an annulment ’ ’ brought under the statute. This is not a tenuous parallel, or one accidental to this case. When one examines the pleading in Garvin v. Garvin (306 N. Y. 118, supra) the substantive content of the pleading is exactly the same, mutatis mutandis, as the allegations in this case. And, of course, in that case there was no pretense that the action was other than one for a declaratory judgment.
The Garvin case, then, disposes not only of the first cause of action but also of the second cause of action. As already observed, there is no difference in the allegations between them. Analytically, either cause of action, if successful, would result in a judgment declaring the third-party marriage a nullity. The third-party marriage is a nullity without judicial action, which distinguishes it from a voidable marriage. To ‘ ‘ annul ’ ’ a void marriage is to declare it null—just as to declare a void marriage null is to “ annul ” it. If the remedy is unnecessary in the one case because of a subsisting separation judgment it is unnecessary in the other case.
Hence, so long as the court has some discretion under section 1134 it is not required to nor should it render an unnecessary judgment, with the incidental consequence of a multiplicity of actions and the duplication of allowed counsel fees and other litigation expense.
Accordingly, the order and judgment dismissing the second amended complaint should be affirmed, on the law and in the exercise of discretion, with costs to defendants-respondents.
The statute then enacted read as follows: “ Where a marriage is sought to be annulled, on the ground that a former husband or wife of one of the parties, was living, it may be declared void on the application of either of the parties, during the life time of the other, or upon the application of such former husband or wife.” Insofar as relevant, it is substantially identical with the present statute.
For a painstaking analysis of the doctrine of equitable estoppel in matrimonial eases, including annulments, and the variant lines that have been evolved, see Hofstadter and Richter, Estoppel in New York Matrimonial Litigation (N. Y. L. J., Feb, 10, 11, 13, 1958, pp. 4, 4, 4).
In the Schneider ease this court reversed Special Term’s denial of an annulment to plaintiff husband. It did so because of Special Term’s mistaken reliance on the dismissal of a prior action, also brought by the husband, which sought not an annulment of the second marriage but a declaratory judgment affirming the subsisting validity of the first marriage. In doing so, this court referred to its discretion under section 1134, and proceeded to exercise it in favor of the plaintiff husband. But notably, the second action for annulment, unlike the unsuccessful first action for a declaratory judgment as to the subsistence of the first marriage, was to annul the wife’s second marriage to her second husband. Moreover, the court emphasized that in the second action for an annulment, unlike the first action for a declaratory judgment, there was absolutely no defense. Indeed, there was none — either of estoppel, no longer available under the rule in Stokes v. Stokes (supra) or, as here, of prior separation judgment.
It is interesting that the same situation recurs in the pleading in Packer v. Packer (6 A D 2d 464, supra), decided simultaneously with this case.