We agree with the court that the first cause of action of the second amended complaint, wherein plaintiff seeks a declaratory judgment and an injunction, was properly dismissed. Having obtained a judgment of separation in this State against her husband (after he had secured a Mexican divorce), plaintiff sufficiently established her marital status. There would be no useful purpose served in a further declaration. (Garvin v. Garvin, 306 N. Y. 118.)
But we cannot subscribe to the view that the cause of action for an annulment of the husband’s remarriage must necessarily fall with the dismissal of the declaratory judgment cause. The court now holds that Garvin disposes of both causes of action since in that case “ the substantive content of the pleading is exactly the same, mutatis mutandis, as the allegations in this case ”. However, the fact is that in Garvin the complaint contained only one cause of action (which was for declaratory *485judgment) whereas here the pleading contains two causes, and asks for separate relief as to each cause.
Expressing the view that the second marriage is a nullity without judicial action, the majority concludes that a judgment under section 1134 of the Civil Practice Act is unnecessary and that discretion resides in the court to dismiss the annulment action for the same reason that the cause for declaratory judgment is eliminated.
In reaching that result, the court has made, what we conceive to be, two impermissible assumptions: (1) that an action to annul a void second marriage brought by a former spouse is indistinguishable from an action for declaratory judgment, and (2) that the same discretionary considerations for a dismissal of a declaratory judgment suit may be applied to the cause of action for annulment. We dissent from both these views.
An action for an annulment of a marriage under section 1134 is not the same as an action for declaratory judgment under section 473 of the Civil Practice Act. As the majority opinion indicates, section 1134 is a successor statute, without material change, to one first enacted in 1824. Then as now, the statute permitted an action to annul a marriage —on the ground that a former husband or wife of one of the parties was living—to be brought upon the application of the former husband or wife. Hence, the action for annulment long antedated eo nomine actions for declaratory judgment which are also creatures of a statute. (See Lowe v. Lowe, 265 N. Y. 197, 202.)
The action for declaratory judgment provided for in section 473 of the Civil Practice Act did not supplant pre-existing forms of actions. Its purpose was to supplement and give relief where other forms of action would not suffice. In Newburger v. Lubell (257 N. Y. 383, 386), Cardozo, Ch. J., said: “A suit fora declaratory judgment is a discretionary remedy (Civ. Prac. Act, § 473), which may be withheld if existing forms of action are reasonably adequate (Rules Civ. Prac. rule 212).”
If, in certain cases, there may be similarities in demands for relief with actions for declaratory judgment, that does not make the actions identical for all purposes. In point of fact, various sections of article 67 of the Civil Practice Act specifically refer to actions to annul void marriages as actions “ declaring the nullity” of void marriages (§§ 1132, 1135, 1140, 1140-a); but at the same time indiscriminately designate the same actions as ones “ to annul a marriage ” (§§ 1134, 1143, 1146).
The requirements for maintaining an action for declaratory judgment and one for annulment are different (see Civ. Prac. Act, § 1165-a). The writer said in a concurring opinion in *486Gray-Lewis v. Gray-Lewis (5 A D 2d 238, 241): “In effect, a suit by a former husband or wife to annul a subsequent marriage of his or her spouse partakes of the nature of an action for declaratory judgment — seeking a declaration of the invalidity of the later marriage. Hence, the jurisdictional prerequisites for maintaining an action for declaratory judgment would be equally applicable to this type of action to annul a marriage.” However, recognition of the points of similarity between the two types of action does not import identity for all purposes. Resemblance does not constitute equivalence.
That the two types of action have not coalesced was particularly recognized in Baumann v. Baumann (222 App. Div. 460) where it was conversely urged that an action for declaratory judgment was barred because of the existence of a matrimonial remedy. This court (per Merrell, J.) held (p. 464): “ We do not think the provisions of articles 67, 68, 69 and 70 of the Civil Practice Act exclude the present form of action. We think the action for declaratory judgment for the relief sought by plaintiff is permissible, and that the provisions of the articles of the Civil Practice Act mentioned at most furnish alternative remedies ”.
Particularly apt is our decision in Schneider v. Schneider (281 App. Div. 250) which the majority of the court now cites in support of its holding that discretion is repeatedly and avowedly exercised in actions brought by the first spouse to annul a remarriage by the defendant spouse to another. In that case an annulment was ordered by this court, reversing a denial of such relief by Special Term. In Schneider the husband had originally commenced an action for declaratory judgment. After trial, the complaint was dismissed on the ground that in the circumstances of the case ‘‘ the discretionary jurisdiction should not be exercised ’’ and ‘‘ that plaintiff is lacking in the bona tides which plaintiffs on the equity side must show to recover ”.
The husband then commenced an action for annulment of the second-marriage under section 1134 of the Civil Practice Act. Special Term dismissed the complaint, after trial, finding elements of inequitable conduct and an attempt to circumvent the effect of the dismissal of the prior declaratory judgment action. In reversing the dismissal and granting the annulment, this court found not only that there was an absence of inequitable conduct but also that the dismissal of the declaratory judgment action did not foreclose a successful suit to annul the second marriage.
Schneider v. Schneider (supra), then, is a clear holding that the two types of suit may be maintained independently, and that *487a dismissal of the action for declaratory judgment for discretionary reasons provided for under rule 212 of the Rules of Civil Practice does not compel, or warrant, a dismissal of a suit to declare the nullity of the second marriage.
Thus, in Baumann v. Baumann (222 App. Div. 460, supra) it was demonstrated that the availability of an action for annulment under section 1134 of the Civil Practice Act does not preclude an action for declaratory judgment. And in Schneider v. Schneider (supra) it was held that a dismissal of an antecedent action for declaratory judgment will not bar a subsequent action for annulment. Moreover, that the two actions are not mutually exclusive, but may coexist, is borne out by Fondiller v. Fondiller (182 Misc. 628) where the court granted both declaratory judgment and an annulment of the second marriage.
The second unwarranted assumption which underlies the majority’s decision to dismiss the annulment action is that the same discretionary power resides in a court to dismiss an action for annulment as it may exercise in an action for declaratory judgment. In arriving at that conclusion, the court has failed to distinguish the statutory discretion vested in courts with respect to declaratory judgment actions, and the discretion which is inherent in a court of equity as to the granting or refusing of equitable relief.
Section 473 of the Civil Practice Act which vested power in the Supreme Court to entertain actions for declaratory judgment also provided for the promulgation of rules to effectuate its purposes. Accordingly, rule 212 of the Rules of Civil Practice directs, ‘ ‘ If, in the opinion of the court, the parties should be left to relief by existing forms of actions, or for other reasons, it may decline to pronounce a declaratory judgment, stating the grounds on which its discretion is so exercised ’ ’. Thus the discretion given by rule 212 is one to grant or refuse declaratory relief, irrespective of the merits of the declaratory relief prayed for. It was held in MacCallum v. MacCallum (2 A D 2d 193, 194): “ The question of whether to assume jurisdiction in declaratory judgment actions should be decided at the threshold of the action and is properly determined on a motion to dismiss the complaint. (Hagaman Mfg. Co. v. Rough-Wear Clothing Co., 284 App. Div. 189; Latham & Co. v. Mayflower Ind., 278 App. Div. 90.) ” (See, also, Guibord v. Guibord, 2 A D 2d 34.)
The statutory discretion to refuse to entertain an action for declaratory judgment is obviously different from the discretion inherent in a court of equity in awarding equitable remedies. The exercise of the latter discretion depends upon the factual circumstances of each case. Even then there are limitations.. *488In Evangelical Lutheran Church v. Sahlem (254 N. Y. 161, 167) Cardozo, Chief Judge, said: “ In the award of equitable remedies there is often an element of discretion, but never a discretion that is absolute or arbitrary. In equity as at law there are signposts for the traveler. ‘ Discretion ** * * “ must be regulated upon grounds that will make it judicial ” ’.”
Though equitable discretion may be broad “ it, nevertheless, is governed in the administration of relief by settled principles and the action of the court is dependent not upon its pleasure, but upon the facts of the case and the condition of the parties.” (Rosenberg v. Haggerty, 189 N. Y. 481, 484.)
There is no discretion in equity to refuse to take jurisdiction of an annulment action. The majority opinion discusses the vicissitudes in our courts of the doctrine of estoppel and inequitable conduct in annulment actions, culminating in Landsman v. Landsman (302 N. Y. 45). Unquestionably Landsman seriously limited, if it did not destroy, the possibility of invoking estoppel or unclean hands as a defense in an annulment suit involving a void marriage. But even assuming, as the majority opinion does, that there has been no “ rejection of all equitable discretion or the exclusion of every species of equitable estoppel ’ ’, the cause of action for annulment in the instant suit presents no case for invoking such residual discretion. In Schneider v. Schneider (281 App. Div. 250, 251, supra) this court (paraphrasing the language in Stokes v. Stokes, 198 N. Y. 301), said: “ In extreme cases the position of the person seeking relief of the kind here sought may be so inequitable that a court of equity will refuse to interfere ’ ’.
We can see no basis for the determination of the majority, upon the amended complaint and affidavits, that plaintiff’s conduct is inequitable and falls within the ambit of an “ extreme ’ ’ case.* The only reason now advanced is that the annulment is unnecessary in view of the subsisting separation judgment obtained by plaintiff against the defendant husband. That hardly constitutes a species of inequitable conduct. We grant that an inference may be drawn that the second marriage is void in view of the recognition of the first marriage by the separation decree.**
*489But the action to declare the nullity of a void marriage is statutory and unconditionally granted by section 1132 of the Civil Practice Act. Nothing in the statute, nor in the cases, imposes a condition that the decree be necessary or useful. Nor does the grant of relief in such cases depend upon the degree of perceptibility of the invalidity of the marriage assailed. Even though a marriage may be clearly void, a party may obtain a decree of the court declaring the same. The qualification which this court now attempts to impose cannot be sustained on statutory or equitable principles.
The separation decree establishes an essential element in the action by the former spouse to annul the subsequent marriage, i.e., that plaintiff is still the wife of defendant Presbrey. Application of the doctrine of res judicata should not be permitted to transmute this assistance into an impediment barring plaintiff’s action.
We would therefore modify the order by denying the motion to dismiss the second cause of action seeking an annulment of the second marriage, and otherwise affirm.
Botein, P. J., and Stevens, J., concur with Breitel, J.; Valente, J., dissents in opinion, in which M. M. Frank, J., concurs.
Order and judgment affirmed, on the law and in the exercise of discretion, with costs to defendants-respondents.
At this posture of the ease, there should, in any event, be no indulgence in a conclusion as to inequities or estoppel. Those considerations are matters to be pleaded as affirmative defenses and developed at a trial.
But see Krause v. Krause (282 N. Y. 355, 360) where the court, in a separation action by a second wife, said: “Nothing in this decision should be taken to mean that because the defendant may not in these proceedings avail himself of the invalidity of his Nevada decree he is not the husband of his first wife.”