The opinion
Young and Carswell, JJ. (dissenting).
We do not think that the defendant’s counterclaim can be sustained. He is seeking affirmative relief and, in order to accomplish this, he is in effect impeaching the Nevada decree of divorce obtained by him. The authorities seem to be clear that this cannot be done. On the other hand, the plaintiff wife did not, in our opinion, waive any right she had by bringing this action for separation. As the Nevada decree was obtained without proper service upon her, it was void and she was entitled to treat it as void and to institute this action for separation, claiming that the marriage of the parties still existed. Nevertheless, this does not prevent the defendant from interposing her adultery as a defense. (Civ. Prac. Act, § 1163; Roth v. Roth, 77 Misc. 673 ; Curnen v. Curnen, 155 App. Div. 536 .) It is only where a party seeks affirmative relief that he may not interpose a defense which in effect impeaches the foreign decree. The trial court properly dismissed the counterclaim. There should, therefore, be a new trial to enable defendant to invoke plaintiff’s adultery as a defense to this action for separation.
Order dismissing defendant’s counterclaim for an absolute divorce reversed on the law, without costs, and the motion denied.