concurrence">

All concurred, Cochrane, J., in opinion.

Cochrane, J. (concurring):

This being a matrimonial action involving as it does the rights and interests of the public, and facts having been brought to the attention of the court, indicating that it had been overreached and imposed upon and induced by fraud and collusion to render a judgment inimical to the rights of the State and contrary to its public policy, the duty rested on the court on its own motion to set the judgment aside, not necessarily for the benefit of the plaintiff, but in the interest' of the common weal. In my opinion the .court had power to enter an order vacating such judgment without notice to the defendant. How otherwise could the court get rid of a fraudulent and collusive judgment in an action of this nature, where the collusion of the parties continued after the fraud and collusion became apparent to the court, and neither party was willing to take the initiative in righting the wrong which had been committed ? Doubtless in such a case it would be more expedient and cautious for the court to cause some notice of its anticipated action to be given to the interested parties, but cases arise where it is difficult if not impossible to give notice. Is the court powerless in such a case ? Applying the preceding observations to the present case it appears that on the presentation to the court of the facts contained in the plaintiff’s moving papers it became apparent to the court that it had been made the instrument of fraud. Instead of vacating the fraudulent judgment ex parte as the court had the power to do, notice was given to the defendant. It may be that it was not the kind of notice which would be required in some cases, but the court had power to act without any notice, and whatever notice the defendant received, poor though it may have been, was more than he was entitled to demand as a matter of right. He is charged with having fraudulently misled the court into making a judgment in which not only the parties to the action *769but the State at large is interested, and in the interests of the State at large the court is not required to look with folded arms at a judgment fraudulently procured because one of the parties who fraudulently procured that judgment thinks he has not had sufficient notice of his own fraud. The point that the question can only be raised by an action and not by motion ignores the duty of the court to act on its own initiative in the interest of the public, regardless of the attitude of either party. The court would be remiss in its duty if it waited for one of the parties to bring an action which might never be brought. Whether the court properly concluded that the judgment was fraudulent is a question not here involved, but for the purposes of the present appeal from the order now before us such fact must be assumed.

Order affirmed, with ten dollars costs and disbursements.

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