Appeal from that part of an order of the Supreme Court at Special Term, entered February 1, 1961, in Bronx County, which granted a motion by plaintiff for an order striking out defendants’ second, third and fourth affirmative defenses.
Per Curiam.Defendants appeal from so much of an order of Special Term as strikes out the second, third and fourth defenses. We agree that the facts pleaded in the third defense do not constitute a defense, and as to that defense we affirm. The second defense pleads equitable estoppel by laches. The action is for a declaratory judgment to declare plaintiff the lawful wife of defendant Weiner, that the divorce obtained by the latter in Florida is void, and that his subsequent marriage to defendant Gaines is a nullity. The second defense pleads that plaintiff advisedly refrained from contesting the Florida divorce proceedings, accepted the alimony awarded pursuant to the decree, took no steps in the period of 18 months between the divorce and the second marriage, and further took no action for a period of seven and a half years after the second marriage. While these facts could not confer jurisdiction on the Florida court and hence validate the Florida decree, they might place plaintiff in a position where she would not be heard to contest it. That a spouse can act with such effect is well established (Krause v. Krause, 282 N. Y. 355; Carbulon v. Carbulon, 293 N. Y. 375; Feuer v. Feuer, 8 A D 2d 805; and many others). The gist of the decisions is that a spouse who by acts indicates acquiescence in the divorce and so induces the other spouse to act upon the assumed validity of the decree cannot be heard to contest it. Whether plaintiff’s conduct reached that point in this case is a matter to be decided upon full exploration of the facts and circumstances.
The fourth defense has been misinterpreted. It pleads the power of the court to refuse to make a declaration in circumstances where it is unnecessary or contrary to principles of equity or public policy. This power can be urued and exercised without pleading. It was therefore not error to strike it. But the grounds advanced for striking it were that it was a repetitious catch-all of the other defenses. In affirming the action of Special Term in striking the defense we do not pass on the question of whether or not this ease is a proper instance for the exercise of the judicial power.
The order should be modified on the law by reinstating the second defense and, as so modified, affirmed, without costs.