In dissenting from such part of the order as sustains the. second alleged defense, I wish to make it clear that I concede that circumstances may exist which will move the court on theory of estoppel or other equitable considerations to deny relief to a plaintiff in this type of action. In this case, however, the facts pleaded in the second alleged affirmative defense, characterized by the defendant as “ apparent acquiescence ” of the plaintiff in the foreign decree of divorce, clearly do not constitute a sustainable defense. Certainly, the right of a spouse to urge the invalidity of a foreign decree of divorce on ground of lack of jurisdiction, is not lost by his or her mere inaction after knowledge of his or her rights. In order that the defense of laches be sustainable, it must appear that the accompanying circumstances were such *938that the inaction or the delay on part of plaintiff in proceeding to enforce his or her rights has resulted in substantial prejudice to defendants. (See 30 C. J. S., Equity, § 116, p. 531; 16 N. Y. Jur., Domestic Relations, § 991, p. 527.) I agree with the learned Special Term (27 Misc 2d 647, 649) that the plaintiff here “may not be charged, upon the facts here, with laches or estoppel (Pomerance v. Pomerance, 61 N. Y. S. 2d 227; Duffy v. Duffy, 23 Misc 2d 268; Gruttemeyer v. Gruttemeyer, 285 App. Div. 1185).”
Valente, J. P., Stevens and Steuer, JJ., concur in Per Curiam opinion; Eager, J., dissents in opinion in which McNally, J., concurs.
Order entered on February 1, 1961, insofar as it grants plaintiff’s motion to strike defendants’ second, third and fourth affirmative defenses, modified on the law by reinstating the second defense and, as so modified, affirmed, without costs. [27 Misc 2d 647.]