
    James T. Schoenbrod, Appellant, v. Rosanne S. Siegler, Respondent.
    Argued April 18, 1967;
    reargued September 25, 1967;
    decided September 28, 1967.
    
      
      Elias Rosenzweig, Harry G. Liese and James T. Schoenbrod, in person, for James T. Schoenbrod, appellant.
    I. Appellant is not barred by the doctrine of res judicata from collaterally attacking the Mexican divorce judgment. (Statter v. Statter, 2 N Y 2d 668; Pray v. Hegeman, 98 N. Y. 351; Angel v. Bullington, 330 U. S. 183; Commissioners of State Ins. Fund v. Low, 3 N Y 2d 590; Israel v. Wood Dolson Co., 1 N Y 2d 116; Matter of New York State Labor Relations Bd. v. Holland Laundry, 294 N. Y. 480; Hansberry v. Lee, 311 U. S. 32.) II. The Mexican court lacked jurisdiction over the subject matter of the judgment. The judgment is not entitled to recognition in New York and may be attacked collaterally. (Noble v. Union Riv. Logging R. R., 147 U. S. 165; Senor v. Senor, 272 App. Div. 306, 297 N. Y. 800; Geary, v. Geary, 272 N. Y. 390; Van Buren v. Harrison, 164 Misc. 774; Borenstein v. Borenstein, 151 Misc. 160, 242 App. Div. 761, 272 N. Y. 407; Rose v. Himely, 4 Cranch [8 U. S.] 241; Williams v. North Carolina, 325 U. S. 226; O’Donoghue v. Boies, 159 N. Y. 87; Yancey v. Andrews, 195 Misc. 336; Matter of Nervo v. Mealey, 175 Misc. 952.) III. Under Mexican law appellant is not precluded from litigating the questions of the existence of a marriage and the validity of the separation' agreement. Under New York law the Mexican judgment has no greater binding effect than in the rendering jurisdiction and may be attacked collaterally. (Langerman v. Langerman, 303 N. Y. 465; Fondiller v. Fondiller, 179 Misc. 800; Matter of Johnson, 301 N. Y. 13; Johnson v. Muelberger, 340 U. S. 581.) IV. The Statter case is not controlling precedent. (Statter v. Statter, 2 N Y 2d 668; Presbrey v. Presbrey, 6 A D 2d 477.) V. Since the Mexican divorce may be attacked collaterally in Mexico, it may be attacked collaterally in New York. (Magowan v. Magowan, 19 N Y 2d 296.) VI. Appellant is not estopped to prove the invalidity of the purported marriage. (Fergusson v. Fergusson, 1 Misc 2d 856; Landsman v. Landsman, 302 N. Y. 45; Schein v. Schein, 169 Misc. 608; Sophian v. Sophian, 279 App. Div. 651; Beaudoin v. Beaudoin, 270 App. Div. 631; “Plato” v. “Plato”, 206 Misc. 497; Villafana v. Villafana, 278 App. Div. 697; Brown v. Brown, 282 App. Div. 726; Cave v. Cave, 285 App. Div. 897; Gruttemeyer v. Gruttemeyer, 285 App. Div. 1185.)
    
      Jules Martin for respondent.
    I. The Mexican decree is a binding adjudication of the legality of agreement and the then existing marriage of the parties, rendering the complaint herein insufficient, as a matter of law. (Statter v. Statter, 2 N Y 2d 668; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Garvin v. Garvin, 306 N. Y. 118; Friedman v. Park Lane Motors, 18 A D 2d 262; Rosenstiel v. Rosenstiel, 16 N Y 2d 64; Fitzgerald v. Morgenstern, 48 Misc 2d 575; Borenstein v. Borenstein, 151 Misc 160, 242 App. Div. 761, 272 N. Y. 407.) II. In addition to the principles of res judicata which bar plaintiff’s claim to relief herein, plaintiff may not be heard to challenge the competence of the Mexican court under principles of equitable estoppel. (Krause v. Krause, 282 N. Y. 355; Packer v. Packer, 6 A D 2d 464; Senor v. Senor, 272 App. Div. 306, 297 N. Y. 800.)
   Chief Judge Fuld.

The sole issue in this case is whether a party to a Mexican divorce may proceed in our courts to litigate the validity of the marriage which the divorce purportedly terminated. The claim has been made that the, judgment, of divorce is res judicata on. that issue. .

According to the complaint, the parties are New York residents who in 1963 participated in a marriage ceremony conducted by the ‘ ‘ then Registrar of the Supreme Court of the Windward and Leeward Islands ” in St. George’s on the island of Grenada, British West Indies. In July, 1965, they entered into a separation agreement in New York and, the following month, they were divorced by a court in Ciudad Juarez, Mexico. The plaintiff husband appeared personally in the Mexican court, the defendant wife by attorney. The decree recited that it “dissolved *■ * * the marriage contracted by [the parties] * * * in St. Georges, British West Indies ” and “ approved * * * the Separation Agreement # * * which has been incorporated by reference into this decree ”.

“ Thereafter,” the plaintiff husband alleges, he discovered that the Registrar who performed the marriage in Grenada ‘1 was not a person authorized by law to perform marriage ceremonies ”, in consequence of which the marriage is said to be “null and void” under the applicable Grenada statutes. He immediately repudiated the separation agreement and instituted a proceeding in the Mexican court which rendered the decree to vacate the judgment of divorce.

In December, 1965, the wife sued the plaintiff in the District Court of Nassau 'County for $1,250 in arrears under the separation agreement. He responded by commencing the present action in the Supreme Court for a declaratory judgment that that separation agreement was “null and void”. After the proceedings in the District Court had been removed and consolidated into those in the Supreme Court, the wife moved to dismiss the declaratory judgment action (CPLR 3211, subd. [a], par. 5) on the ground that the Mexican divorce decree was res judicata as to the validity of the marriage. The court at Special Term withheld passing on the motion pending the outcome of the proceedings in Mexico to vacate the decree.

In March, 1966, the Mexican court denied the plaintiff’s petition for relief from the judgment of divorce on the ground that it had ‘ no power under Mexican law to reopen the original decree for any purpose whatsoever According to an affidavit by the plaintiff’s Mexican counsel contained in the record on on appeal,

‘ ‘ Under Mexican law, a final judgment of divorce made by a Court is final and conclusive for all purposes. There is no procedure for reopening the decree to admit new evidence to correct mistakes * * * even though had such evidence been before the Court, a decree would not have been granted * * *.
Our statutes make no provisions for appeal or review in cases of this nature and there is therefore no means of obtaining a judicial determination by a Mexican Court of the nullity of the decree of divorce ”.

However, the lawyer further asserted, and it stands uncontradicted on the record now before us,

‘ ‘ neither party would be barred by the [Mexican'] doctrine of res judicata from litigating in a separate proceeding the validity and effect of a separation agreement incorporated by reference in a divorce decree. ’ ’

The wife renewed her motion to dismiss the complaint in the present proceeding’ and the court denied it on the ground that, although the divorce decree recites that the parties were validly married ”, the “ allegation was not contested ” and the ‘ ‘ husband should not be estopped ’ ’ from litigating the issue now since, under Mexican law, “ he has no means of attacking [the] decree directly.” On appeal, a closely divided Appellate Division reversed the resulting order ‘ under constraint of Statter v. Statter (2 N Y 2d 668 ).”

In the Statter case (2 N Y 2d 668, supra), some two years after a husband successfully sued his second wife in our courts for a separation, the latter brought suit against him for an annulment, alleging that he had never been validly divorced from his first wife. He asserted, in defense, that the separation decree was res judicata on the issue of the validity of his second marriage. In sustaining the husband’s position, we held that (2 N Y 2d, at p. 672) “ a judgment of separation establishes the existence of a valid and subsisting marriage between the parties [and] * * * this is true despite the fact that no clash or controversy surrounded the issue and that it was found on the basis of an admission in the pleading.” We went on to observe (p. 675) that “ If there has been evidence discovered since the trial the law makes appropriate provision by way of motion in the first proceeding.”

Although Statter involved the conclusive effect of a separation decree in a subsequent annulment proceeding, the principle there announced would appear to apply with equal force if the first judgment were for divorce instead of separation. (See Frost v. Frost, 260 App. Div. 694; Ann., 149 A. L. E. 1195.) Nor should it matter, as a general rule, that we are dealing here with an earlier judgment rendered by a Mexican court rather than by a court of our own or a sister state. While “ we are under no constitutional compulsion to give full faith and credit” to the judgment of a court of a foreign nation (Rosenstiel v. Rosenstiel, 16 N Y 2d 64, 73; see Rosenbaum v. Rosenbaum, 309 N. Y. 371, 375; Gould v. Gould, 235 N. Y. 14, 24-30; Aetna Life Ins. Co. v. Tremblay, 223 U. S. 185, 190), we frequently recognize such a judgment “as a matter of comity”. (Rosenstiel v. Rosenstiel, 16 N Y 2d 64, 74, supra; see Fabrikant v. Fabrikant, 19 N Y 2d 154; International Firearms Co. v. Kingston Trust Co., 6 N Y 2d 406, 411.)

Nevertheless, even though the case before us approximates in many respects the situation which existed in Statter v, Statter (2 N Y 2d 668, supra), there is a significant difference between the two cases which makes the Statter decision inapplicable here. As already indicated, our determination in that case was grounded in part on the fact that relief from the earlier judgment of separation was available ‘ by way of motion in the first proceeding ” (2 N Y 2d, at p. 675). The plaintiff before us has already tried in vain to obtain such relief from the Mexican court which rendered the judgment of divorce. Unlike our own courts which have power to “ relieve a party from [a judgment] * * * upon the ground of * * * 11 ewly-d iscover ed evidence ” (CPLE 5015, subd. [a]), the courts of Mexico do not have jurisdiction or power to vacate their own divorce decrees for any reason at all. Under these circumstances, Statter does not point the way to the proper result in the case before us since the only way the plaintiff could get the relief to which he may be entitled would be by way of a collateral attack on the judgment.

In point of fact, it would appear that the principles of res judicata which obtain in Mexico would not bar the plaintiff from collaterally attacking the decree there if the defendant could be brought within the jurisdiction of the Mexican courts. Since the rendering nation would permit such an attack, it follows that the plaintiff ‘ ‘ may collaterally attack [the decree] in our courts ” and litigate the validity of the marriage which the divorce purportedly terminated. (Magowan v. Magowan, 19 N Y 2d 296, 299; see Bata v. Bata, 39 Del. Ch. 258, 282-291 [Del. Sup. Ct. ], cert. den. 366 U. S. 964.) Generally, there is no reason to give more conclusive effect to a foreign judgment than it would be accorded by the courts of the jurisdiction which rendered it.

The order of the Appellate Division should be reversed, without costs, and the order of the Supreme Court, New York County, denying the defendant’s motion to dismiss the complaint, reinstated.

Van Voorhis, J.

(dissenting). If the defect in the Mexican decree of divorce consisted in anything except that the couple were not legally married in the beginning, the Mexican decree would doubtless be held not to be subject to collateral attack in New York State for the reason that it could not be attacked collaterally in Mexico (see cases cited in the first paragraph of Judge Burke’s dissenting opinion). The court is holding, in essence, that the Mexican decree can be attacked collaterally on the single ground that the parties to it could have obtained an annulment instead of a divorce, which would have likewise freed them from the bonds of matrimony and which, to that extent, would not have conflicted with the decree of divorce. So construed, this reasoning runs, the divorce decree added nothing to what could have been obtained by annulment with the consequence that it was ineffective either as an adjudication of the existence of the marriage to be dissolved or of the separation agreement which was entered into before the divorce and when they purported to be husband and wife. It seems to me that, since the decree cannot be attacked collaterally, in Mexico or here, by reason of any other defect in the Mexican court’s jurisdiction of the subject matter, collateral attack should not be allowed upon the ground that there was no marriage to dissolve. In my view, the Mexican decree establishes conclusively the validity of the marriage and of the separation agreement unless it be vacated on direct attack in the jurisdiction in which it was rendered.

Burke, J.

(dissenting). I am in agreement with the Chief Judge that, consistent with Rosenstiel v. Rosenstiel (16 N Y 2d 64), the same res judicata effect ought to be given to the divorce decrees of foreign countries as we give to the decrees of sister States, even though this is not constitutionally required. Statter v. Statter (2 N Y 2d 668) is concerned with the res judicata effect we give to the decrees of this State. The doctrine of res judicata does not require that we accord a foreign State’s judgment greater credit than the courts of that State would accord it. If it may be collaterally attacked there, res judicata does not bar such an attack in our courts. (See Cook v. Cook, 342 U. S. 126; Johnson v. Muelberger, 340 U. S. 581; Sherrer v. Sherrer, 334 U. S. 343; Coe v. Coe, 334 U. S. 378; Magowan v. Magowan, 19 N Y 2d 296; Weisner v. Weisner, 17 N Y 2d 799.)

I disagree with him, however, on the question of whether the appellant in this case provided the court at Special Term with ‘ sufficient information ’ ’ concerning his alleged right under Mexican law to ‘ ‘ collaterally ’ ’ attack the divorce he obtained there to resist respondent’s motion to dismiss the complaint based upon res judicata. (I do not reach the question of whether he is estopped to attack this foreign decree which he himself procured, as this issue was not sufficiently developed before Special Term. Cf. Krause v. Krause, 282 N. Y. 355. See, also, Clark, Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale L. J. 45 [I960].)

Adopting, as we are, the full faith and credit standard applicable to sister State decrees in determining the res judicata effect to be given divorce decrees rendered by the courts of foreign countries, it seems clear that the very same presumptions applicable to decrees of our sister States and the very same burden of proof required in order to undermine their decrees should be applied in the case at bar. In terms of such standards appellant has not, on this record, made an adequate showing of the availability in Mexico of a remedy by way of collateral ” attack such as he is now attempting in our courts to resist dismissal of the complaint.

The only evidence of Mexican law produced by appellant before Special Term was an affidavit by appellant’s Mexican attorney (the very same one retained by him to try to upset his divorce decree in the Mexican courts) stating in conclusory terms his view that, while “ [u]nder Mexican Law, a final judgment of divorce made by a Court is final and conclusive for all purposes [and] [t]here is no procedure for reopening the decree * * * since the effect of the divorce decree is merely in substance to establish the single status of the parties, under Mexican Law neither party would be barred by the doctrine of res judicata from litigating in a separate proceeding the validity and effect of a separation agreement incorporated by reference in a divorce decree.” (Emphasis added.) No Mexican authorities were cited or even alluded to for this proposition, and no explanation was provided for the seemingly illogical statement of the attorney that the effect of the decree was 11 merely ’ ’ to establish the single status of the parties, when it expressly incorporated the separation agreement describing the support obligations of the husband. The weight to be accorded this affidavit as support for appellant’s position is further undercut by the attorney’s statement-further on in the document that “ [t]he plaintiff in the aforementioned divorce proceeding [appellant] has exhausted his remedies in the Republic- of Mexico. ’ ’

Such an affidavit does not, in my view, satisfy even the requirements of CPLR 4511 (subd. [b]) that before a court shall be required to take judicial notice of the law of a foreign country the party requesting such notice must “ furnish * * * the court sufficient information to enable it to comply with the request (See Petition of Petrol Shipping Corp., 37 F. R. D. 437 [S. D. N. Y.], affd. 360 F. 2d 103, cert. den. 385 U. S. 931; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3016.16, p. 30-240, and vol. 5, par. 4511.06.)

The affidavit in question completely fails to indicate any prima facie possibility that appellant would be able to sustain the “heavy burden” upon him to demonstrate the existence of Mexican authority for a collateral attack upon one of that country’s divorce decrees. (Magowan v. Magowan, supra, p. 299; Klarish v. Klarish, 19 A D 2d 170, affd. without opn. 14 N Y 2d 602.)

Judge (then Justice) Bergan, writing for the Appellate .Division, First Department, in Klarish, pointed out that “ ‘ [t]he faith and credit given [to a sister State decree, which is the standard adopted here] is not to be niggardly but generous, full ’ [quoting from Johnson v. Muelberger, supra, p. 584], and ‘ the burden of undermining a decree of a sister state “ rests heavily upon the assailant.” ’ (Cook v. Cook, 342 U. S. 126, supra; Williams v. State of North Carolina, 325 U. S. 226, 234).” (See 19 A D 2d, p. 172.) Appellant has completely failed to show that he could possibly meet such a burden of proof.

I would affirm the order of the Appellate Division herein on the ground that appellant failed to make a sufficient showing to defeat respondent’s motion to dismiss the complaint based upon res judicata.

Judges Bergan, Keating and Henry concur with Chief Judge Fuld; Judges Van Voorhis, Burke and Scileppi dissent and vote to affirm in separate opinions by Judges Van Voorhis and Burke, in both of which each dissenting Judge concurs.

Upon reargument: Order of the Appellate Division reversed and that of Special Term reinstated, without costs. 
      
      . The record does not indicate the precise nature of the defect in the Registrar’s authority to officiate at the wedding. We simply note that the question as to the validity of the ceremonial marriage between the parties must be decided under the law of Grenada and that it will also be for the trial court to determine whether the parties subsequently lived together as man and wife in a jurisdiction which recognizes common-law marriages. (See Shea v. Shea, 294 N. Y. 909.)
     
      
      . Since the defendant’s motion to dismiss was ibased solely on res judicata (CPLR 3211, subd. [a], par. 5), we need not now consider the sufficiency of the complaint (CPLR 3211, subd. [a], par. 7).
     
      
      . Under some circumstances, there may very well be good reason to give less conclusive effect to the judgments of the courts of foreign countries. (See Restatement, Second, Conflict of Laws [proposed Official Draft, Part I, May 2, 1967], § 115, comment f; Reese, The Status in This Country of Judgments Rendered Abroad, 50 Col. L. Rev. 783, 790-800; Smit, International Res Judicata and Collateral Estoppel in the United States, 9 U. C. L. A. L. Rev. 44, 71-72.)
     
      
       Designated pursuant to section 2 of article VI of the State Constitution ;n place of Breitel, J., disqualified.
     