¶1I favor reversal of the judgment and new trial in this action and concur to that extent with the opinion of O'BRIEN, J., except in one particular. I do not think that the *465 Massachusetts judgment, so called, is res adjudicata of the issues involved in this action. In that case the plaintiff had petitioned the Probate Court of the county of Suffolk, in the commonwealth of Massachusetts, to compel the defendant, whom she alleged to be her husband, to make provision for her support. In answer thereto the defendant denied that he was her husband, and set up the decree of divorce obtained in this state annulling his marriage to her. Thereupon the judge of the Probate Court ordered that the plaintiff's petition be dismissed. Whether the decree of divorce in this state was obtained through false and fraudulent representations does not appear to have been alleged or litigated in those proceedings. The judge of the Probate Court was, therefore, obliged to give full faith and credit to the judgment and decree of the courts of this state, under the Constitution of the United States. (Kerr v. Kerr,41 N.Y. 272.) Whether the Probate Court had jurisdiction to try the question as to whether the New York judgment was obtained through false and fraudulent representations it is not necessary to now determine, in view of the fact that that issue was not raised or determined in those proceedings. The court simply dismissed the petition. It does not appear even that it was dismissed upon the merits. It seems to me, therefore, that the determination in those proceedings does not preclude the plaintiff from bringing this action to set aside the decree of divorce upon the ground that it was obtained through false and fraudulent representations by the defendant. (Everett v. Everett,75 App. Div. 369.)
¶2GRAY, BARTLETT, VANN and WERNER, JJ., concur with O'BRIEN, J.; HAIGHT, J., reads for reversal and new trial; CULLEN, Ch. J., not sitting.
¶3Judgment reversed and complaint dismissed, without costs. *466