Plaintiff sues as the wife of the defendant for a declaration of the invalidity of a divorce from her which he secured in a foreign jurisdiction. Heretofore she initiated a proceeding in the Family Court of the City of New York to compel her support by him as her husband. After trial thereof, that proceeding was dismissed on a finding that his foreign divorce is valid in this state. I agree that this former adjudication is not an estoppel in the present action.
The earlier proceeding in the Family Court was in its substantive nature a summary prosecution for a public tort of the defendant (Dom. Rel. Court Act, title III, arts. 3, 4; Code Crim. Proc., part VI, titles VII, VIII. See Duffy v. People, 6 Hill, 75; People v. Schenkel, 258 N.Y. 224. Cf. Matter ofKane v. Necci, 269 N.Y. 13.) The present action is an ordinary civil prosecution brought by this plaintiff individually for the vindication of her status as wife of the defendant. (See Civ. Prac. Act, §§ 4, 6.)
Though the petition in a proceeding in the Family Court may be made in the name of the person asking support and the city of New York is not in every case an indispensable party thereto, yet the Corporation Counsel may always represent the petitioner and "shall act as counsel to the court and shall take charge of all legal proceedings on behalf of the court where the court's action is under review." (Dom. Rel. Court Act, §§ 59, 112, 138; L. 1933, ch. 482, as amd. L. 1934, ch. 362.) In no fair sense, then, was the summary proceeding in the Family Court a controversy between the parties to the present action.
Nor are the two prosecutions at all equal in respect either of procedure or of the character of evidence necessary to a decision. The present action is to be tried and determined under the Civil Practice Act. (See § 473 thereof and Rules Civ. Prac., rules 210 and 213.) Hearings in the Family Court are conducted in accordance with such rules as may be adopted by the Board of Justices of the Domestic Relations Court. "Before making the order the court shall have presented to it by the investigation section the *Page 226 facts discovered in its investigation of the family and may receive from other sources any information that may assist the court in its determination." (Dom. Rel. Court Act, §§ 128, 129.)
I think this lack of essential identities dictates that the present issue of res judicata should be ruled against the defendant on the analogy of the principle that a judgment in a criminal case is generally no bar to a subsequent civil action based on the same facts. (2 Freeman on The Law of Judgments [5th ed.], § 914. See Green v. Altenkirch, 176 App. Div. 320, and the cases there cited. Cf. Maybee v. Avery, 18 Johns. 352.)
LEHMAN, Ch. J., FINCH, RIPPEY, LEWIS and DESMOND, JJ., concur with CONWAY, J.; LOUGHRAN, J., concurs in result in separate opinion.
Orders reversed, etc. *Page 227