I dissent and vote to reverse the order and grant the motion so that the status quo would be maintained until the bona fides of the husband’s claimed Connecticut domicile is determined. In so doing I would hold that on the showing so far made plaintiff is entitled to a trial of that issue before the Connecticut action is prosecuted. (Texas v. Florida, 306 U. S. 398; Hammer v. Hammer, 278 App. Div. 396, affd. 303 N. Y. 481; Garvin v. Garvin, 302 N. Y. 96.) (See, also, Rosenbaum v. Rosenbaum [309 N. Y. 371], where, although injunctive relief was denied because the Federal constitutional full faith and credit clause did not apply, the court emphasized the greater need for an injunction in eases such as the one at bar where there is a factual basis tending to establish the validity of the alleged foreign domicile and thus guard the wife against the heavy burden of striking down the effect of a sister State holding.)
Special Term held the issue of domicile is one of fact to be “resolved only at a trial”. This court affirms and in doing so finds it necessary to emphasize and adopt defendant’s view of the facts. Therein is demonstrated the need for the injunction sought which, as I view the above authorities, is accentuated by the fact that defendant’s claim of foreign domicile is not obvious sham.
A New York wife in respect of a New York marriage, apparently living there ever since, is entitled to the protection afforded by an injunction when confronted with a suit for a divorce in a sister State whose judgments are entitled to full faith and credit under the Federal Constitution. The necessity for the injunction is demonstrated by the application of the full faith and credit clause, the attack on the marital status on grounds not recognized in New York and the threat against plaintiff’s rights under an antenuptial agreement dependent on the parties not being divorced or separated by decree or agreement.
The plaintiff made the necessary showing when an issue of fact appeared as to the defendant’s domicile. The emphasis on the facts favoring the defendant carries with it the effect of an adverse adjudication without the *882benefit of a trial on the merits, and unnecessarily exposes the plaintiff in a situation where the remedy of injunction was forged to offset the effect of the extension of full faith and credit to sister State judgments based on foreign residence of one of the parties.
Botein, P. J., Breitel, Valente and Eager, JJ,, concur in Per Curiam opinion; McNally, J., dissents in opinion.
Order, entered on January 5, 1962, affirmed with $20 costs and disbursements to the respondent.