I agree with the majority in the conclusion as to the validity of the Mexican divorce. However, I would deny an annulment to plaintiff husband upon an additional ground. This court, in Prcsbrey v. Prcsbrey (6 A D 2d 477, affd. 8 N Y 2d 797) and Packer v. Packer (6 A D 2d 464) expressly recognized the power in a court of equity to exercise discretion in granting annulments and to apply principles of equitable estoppel, particularly in a case where the party seeking affirmative relief had knowingly participated in or had acted upon what he was then seeking to have declared as null.
That discretion to deny equitable relief should properly be exercised in cases such as the instant one both from the standpoint of our public policy to preserve existing marriages and from the decidedly inequitable conduct of the plaintiff who entered into the marriage fully aware of the circumstances and the legal doubts surrounding the obtaining of the Mexican divorce decree. The evidence established that plaintiff knew of defendant’s prior Mexican divorce before the parties were married in November, 1956. In fact, before the parties went to the license bureau, plaintiff arranged to have defendant bring the Mexican divorce decree to his attorney for examination and opinion. Moreover, the parties had the Corporation Counsel’s office approve their respective divorce decrees before a marriage license was issued. After having been married for five and one-half years, plaintiff commenced this action in April, 1962 for an annulment. To grant an annulment herein would, in effect, import into the law a species of marriage terminable at the will of one spouse by the simple expedient of changing his attorney.
The law concerning the proper application of any principle of equitable estoppel in matrimonial actions involving claimed invalid foreign decrees of divorce has been in a confused and unsettled state. (See 44 Cornell L. Q. 150-157; Hofstadter and Richter, “Estoppel in New York Matrimonial Litigation ”, N. Y. L. J., Feb. 10, 11, 13, 1958.) Estoppel has been applied against one who has appeared in the challenged divorce proceeding (Krause v. Krause, 282 N. Y. 355) or who has taken advantage of the decree of divorce by remarrying (Carbulon v. Carbulon, 293 N. Y. 375). In Preliminary Draft No. 1 (1953) of the Restatement, Second, Conflicts of Laws, § 112, the rule is suggested that “ [a] person may be precluded from questioning the validity of a divorce decree if, under the circumstances of the case, it would be inequitable to permit bim to do so.”
I would hold that one who knowingly accepts the benefits of a bilateral-appearance Mexican divorce decree, with awareness *640of the legal doubts with respect to it, even though not a party to the divorce proceeding, should not thereafter be permitted to change his position and challenge that decree before a court of equity. (See 77 Harv. L. Rev. 1531, 1534; 64 Col. L. Rev. 968, 973.)
There may be countervailing considerations of public policy, not present in the instant case, which preclude the application of any equitable estoppel. Thus, cases involving “mail order ” divorces stand on a different footing since in such instances “ [t]here is not even the slightest semblance or color of jurisdiction justifying action by a court ”. (Caldwell v. Caldwell, 298 N. Y. 146, 150-151.) So, too, where the subsequent marriage occurs before a divorce has become final, the attempted marriage is “wholly without validity from its beginning ” and there is no “room for any counteractive estoppel”. (Landsman v. Landsman, 302 N. Y. 45, 48.)
However, where, as here, the recognition of the validity of the Mexican divorce depends upon the exercise of comity—and, as the opinion of Botein, P. J., points out our courts have frequently recognized such decrees — a spouse should not be permitted, on equitable principles, collaterally to attack such a decree where the subsequent marriage was entered into with knowledge of the circumstances under which the divorce decree was obtained. Thus, irrespective of the conclusion of the majority as to the validity of the Mexican divorce decree, I would have denied plaintiff an annulment of the marriage in this case because he was equitably estopped from questioning the validity of the Mexican divorce decree obtained by his wife from her former husband.