Woodward, J.:
This action was brought for the purpose of setting aside, on the ground of fraud, a judgment of the Supreme - Court entered in April, 1888, annulling the marriage of the' parties to this action. The plaintiff alleges that she was married to the defendant on October 30, 1884, at Brooklyn, by John Courtney,-a justice of the peace, and cohabited with him up to June 1, 1891; that in 1887, the defendant, with fraudulent intent, told her that his' family would not recognize such a marriage, and that a ceremonial marriage must take place before a clergyman; that in order to have such marriage take place, the previous marriage would hav-e to be annulled; that proceedings for such purpose would- be merely formal, and that the plaintiff need not pay any attention thereto; that, relying upon such statement, she paid no attention to an action which was. instituted against her by the defendant in December, 1887, in which a judgment was entered in April, 1888, annulling the Courtney marriage, and that the parties continued to live together till June, 1891,-[371]*371the defendant reiterating his promise to have a marriage ceremony, which, however, never took place. The plaintiff further alleged that in 1879, when the plaintiff was under sixteen years of age, at a social gathering in Providence, R. I., in a spirit of fun, a sham marriage ceremony was performed between the plaintiff and William Gr. Morrison, but that the person who performed the ceremony had no authority under the laws of Rhode Island to perform a marriage ceremony, the plaintiff being a minor under sixteen years of age ; that within an hour after the ceremony the parties separated and the plaintiff returned to her home in Massachusetts, and nothing further was heard of a marriage until two months afterward, when Morrison called on the parents of the plaintiff and claimed that the ceremony was a valid marriage, and “ that the said Morrison urged his claim with such persistency that the plaintiff went to live with him in the city of Boston, Massachusetts, and lived with him for a period of six months, but left him before she reached the age of seventeen years; ” that as the plaintiff was a minor, under the age of sixteen years, and there was no consent of parents or guardian and no license and no record, the alleged marriage with Morrison was null and void; that the defendant made inquiries to determine whether there was a valid marriage and became satisfied that there was not, and that he knew all of these facts when the marriage before Judge Courtney occurred.
The allegations of the defense, which were sufficient to raise an issue upon the merits, are not material to be here considered, except that it was pleaded in the fifth defense that the defendant had always been a resident of Boston, Suffolk county, Mass., and that in February, 1895, the plaintiff commenced an action against him in the Probate Court of that county (the said court having jurisdiction), alleging that she was his lawful wife and that without just cause he had failed to support her, and praying such order as might be deemed expedient concerning her support. Issues were raised by the pleadings in this case, the defendant setting up the decree of the Supreme Court of April, 1888, annulling his marriage with the plaintiff, and which declared that the plaintiff “ was at the date of said supposed marriage a married woman and the legal, wife of one William Gr. Morrison.” The plaintiff alleged a common-law marriage with the defendant subsequent to the decree mentioned, [372]*372but this does not appear to have been considered, and the Probate Court entered a decree as follows:
“ Commonwealth of Massachusetts.
“ Suffolk, ss.
“ At a Probate Court holden at Boston, in and for said county of Suffolk, on the twenty-fifth day of March, in the year of our Lord one thousand eight hundred and .ninety-seven,
“ On the petition of Georgia L. Everett of Boston, in said county, the wife of Edward Everett, of said Boston, praying that- said court will make such order as it deems expedient concerning her support, said Edward Everett having appeared by his attorney, and
' “ It appearing to the court after hearing thereon- that the prayer of said petition should not be granted.
“ It is ordered-that said petition be dismissed.
“ROBERT GRANT,
“ Judge of Probate Court.”
The learned court at Special Term held that this was a decision of the question of the marital relations of the plaintiff and defendant, upon the merits, and that this constitutes res judicata in this action. . This is the only question involved in this appeal, and we are clearly of .the opinion that, while the decision of the Probate Court of Massachusetts may be-regarded as a determination upon the merits of the question at issue between the parties, it has no' bearing whatever upon the question presented by this action, which is whether the decree of April, 1888, was procured by fraud perpetrated upon the plaintiff and the courts of this State.' On the case as it was presented to the Probate Court in Massachusetts there was a judgment of the Supreme Court of the State of New York annulling the marriage between the plaintiff and defendant, and that provision of the Federal Constitution (art. 4, § 1) which requires the courts of each State to give full faith and credit to the judgments and decrees of the courts in the several States, and the statutes enacted to give effect to this clause (See IT. S. R. S. § 905, re-enacting former statutes), made it incumbent upon the Probate Court to hold that the plaintiff was not the wife of the defendant. But this could not prevent the courts of the State of New York from inquiring whether the decree of April, 1888, was secured through a fraud practiced upon the plaintiff and the court. The requirement of the [373]*373Federal Constitution and the law is that the judgments of the State courts shall have the same faith and credit in other States as they have in the State where they were rendered (Kerr v. Kerr, 41 N. Y. 272), and a fraudulent judgment is open to question at any time, even in a foreign jurisdiction. (Kinnier v. Kinnier, 45 N. Y. 535; Kerr v. Kerr, supra.)
The Massachusetts court has given the same credit to a -judgment: of the Supreme Court of this State that it would have here, so long-as it is not reversed, set aside or impeached; it has held, following the decree of April, 1888, that the plaintiff is not the lawful wife of the defendant, but it would be a strange thing if the Massachusetts court could, by such recognition of the decrees of the courts of this State, forever prevent the courts of Hew York from inquiring whether the decree of April, 1888, was procured by fraud. The question of the faith and credit to which the decree of April, 1888, was entitled ivas nót in issue in the Massachusetts court. The plaintiff alleged that she was the lawful wife of the defendant. He denied this and put the decree of April, 1888, in evidence. Upon the face of the judgment the parties were not husband and wife, and the Probate Court dismissed the petition asking that a provision be made for her súpport by the defendant.
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Woodward, J.:
This action was brought for the purpose of setting aside, on the ground of fraud, a judgment of the Supreme - Court entered in April, 1888, annulling the marriage of the' parties to this action. The plaintiff alleges that she was married to the defendant on October 30, 1884, at Brooklyn, by John Courtney,-a justice of the peace, and cohabited with him up to June 1, 1891; that in 1887, the defendant, with fraudulent intent, told her that his' family would not recognize such a marriage, and that a ceremonial marriage must take place before a clergyman; that in order to have such marriage take place, the previous marriage would hav-e to be annulled; that proceedings for such purpose would- be merely formal, and that the plaintiff need not pay any attention thereto; that, relying upon such statement, she paid no attention to an action which was. instituted against her by the defendant in December, 1887, in which a judgment was entered in April, 1888, annulling the Courtney marriage, and that the parties continued to live together till June, 1891,-[371]*371the defendant reiterating his promise to have a marriage ceremony, which, however, never took place. The plaintiff further alleged that in 1879, when the plaintiff was under sixteen years of age, at a social gathering in Providence, R. I., in a spirit of fun, a sham marriage ceremony was performed between the plaintiff and William Gr. Morrison, but that the person who performed the ceremony had no authority under the laws of Rhode Island to perform a marriage ceremony, the plaintiff being a minor under sixteen years of age ; that within an hour after the ceremony the parties separated and the plaintiff returned to her home in Massachusetts, and nothing further was heard of a marriage until two months afterward, when Morrison called on the parents of the plaintiff and claimed that the ceremony was a valid marriage, and “ that the said Morrison urged his claim with such persistency that the plaintiff went to live with him in the city of Boston, Massachusetts, and lived with him for a period of six months, but left him before she reached the age of seventeen years; ” that as the plaintiff was a minor, under the age of sixteen years, and there was no consent of parents or guardian and no license and no record, the alleged marriage with Morrison was null and void; that the defendant made inquiries to determine whether there was a valid marriage and became satisfied that there was not, and that he knew all of these facts when the marriage before Judge Courtney occurred.
The allegations of the defense, which were sufficient to raise an issue upon the merits, are not material to be here considered, except that it was pleaded in the fifth defense that the defendant had always been a resident of Boston, Suffolk county, Mass., and that in February, 1895, the plaintiff commenced an action against him in the Probate Court of that county (the said court having jurisdiction), alleging that she was his lawful wife and that without just cause he had failed to support her, and praying such order as might be deemed expedient concerning her support. Issues were raised by the pleadings in this case, the defendant setting up the decree of the Supreme Court of April, 1888, annulling his marriage with the plaintiff, and which declared that the plaintiff “ was at the date of said supposed marriage a married woman and the legal, wife of one William Gr. Morrison.” The plaintiff alleged a common-law marriage with the defendant subsequent to the decree mentioned, [372]*372but this does not appear to have been considered, and the Probate Court entered a decree as follows:
“ Commonwealth of Massachusetts.
“ Suffolk, ss.
“ At a Probate Court holden at Boston, in and for said county of Suffolk, on the twenty-fifth day of March, in the year of our Lord one thousand eight hundred and .ninety-seven,
“ On the petition of Georgia L. Everett of Boston, in said county, the wife of Edward Everett, of said Boston, praying that- said court will make such order as it deems expedient concerning her support, said Edward Everett having appeared by his attorney, and
' “ It appearing to the court after hearing thereon- that the prayer of said petition should not be granted.
“ It is ordered-that said petition be dismissed.
“ROBERT GRANT,
“ Judge of Probate Court.”
The learned court at Special Term held that this was a decision of the question of the marital relations of the plaintiff and defendant, upon the merits, and that this constitutes res judicata in this action. . This is the only question involved in this appeal, and we are clearly of .the opinion that, while the decision of the Probate Court of Massachusetts may be-regarded as a determination upon the merits of the question at issue between the parties, it has no' bearing whatever upon the question presented by this action, which is whether the decree of April, 1888, was procured by fraud perpetrated upon the plaintiff and the courts of this State.' On the case as it was presented to the Probate Court in Massachusetts there was a judgment of the Supreme Court of the State of New York annulling the marriage between the plaintiff and defendant, and that provision of the Federal Constitution (art. 4, § 1) which requires the courts of each State to give full faith and credit to the judgments and decrees of the courts in the several States, and the statutes enacted to give effect to this clause (See IT. S. R. S. § 905, re-enacting former statutes), made it incumbent upon the Probate Court to hold that the plaintiff was not the wife of the defendant. But this could not prevent the courts of the State of New York from inquiring whether the decree of April, 1888, was secured through a fraud practiced upon the plaintiff and the court. The requirement of the [373]*373Federal Constitution and the law is that the judgments of the State courts shall have the same faith and credit in other States as they have in the State where they were rendered (Kerr v. Kerr, 41 N. Y. 272), and a fraudulent judgment is open to question at any time, even in a foreign jurisdiction. (Kinnier v. Kinnier, 45 N. Y. 535; Kerr v. Kerr, supra.)
The Massachusetts court has given the same credit to a -judgment: of the Supreme Court of this State that it would have here, so long-as it is not reversed, set aside or impeached; it has held, following the decree of April, 1888, that the plaintiff is not the lawful wife of the defendant, but it would be a strange thing if the Massachusetts court could, by such recognition of the decrees of the courts of this State, forever prevent the courts of Hew York from inquiring whether the decree of April, 1888, was procured by fraud. The question of the faith and credit to which the decree of April, 1888, was entitled ivas nót in issue in the Massachusetts court. The plaintiff alleged that she was the lawful wife of the defendant. He denied this and put the decree of April, 1888, in evidence. Upon the face of the judgment the parties were not husband and wife, and the Probate Court dismissed the petition asking that a provision be made for her súpport by the defendant. But even if the issue of the alleged fraud in procuring the judgment had been asserted in the Massachusetts court, the decree of the latter court could not estop the courts of the State of Hew York from having control of -their own judgments. The court on which the imposition has been practiced may deal with its own judgment as it sees fit. It may institute an independent inquiry, and, upon being satisfied as to the fraud, may vacate the judgment of its own motion. (Ruger v. Heckel, 21 Hun, 489, 492.) The constitutional requirement, as stated in the statutes made to give effect to the constitutional provision, is that a judgment must, in every State, be given the same faith and credit to which it is entitled where it was rendered. (Mills v. Duryee, 7 Cranch, 483.) It is well settled by authority that a judgment of one State can have no greater force or authority than that which attached in the State where it was rendered. (Van Oleaf v. Burns, 118 N. Y. 549, 553, and authorities there cited; Rigney v. Rigney, 127 id. 408,415, and authorities there cited.) It is equally well set-[374]*374tied that subject to the qualification that they are open to inquiry as to the jurisdiction of the court which gave them, and as to the notice to the defendant, thé judgment of a State court, not reversed by a superior court having jurisdiction, nor set aside by a direct proceeding in chancery, is conclusive in the courts of all of the other States where the subject-matter of controversy is the same. (Christmas v. Russell, 5 Wall. 290.) In Hanley v. Donoghue (116 U. S. 1, 4) the court say“ Judgments recovered in one State of the Union, when proved in the courts of another, differ from judgments recovered in a foreign country in no other respect than that of not being re-examinable upon the merits, nor impeachable for fraud in. obtaining them, if rendered by a court having jurisdiction of the cause - and of the parties,” citing Buchner v. Finley (2 Pet. 592); M' Elmoyle v. Cohen (13 id. 312, 324); D' Arcy v. Ketchum (11 How. [U. S.] 165,176); Christmas v. Russell (5 Wall. 290, 305), and Thompson v. Whitman (18 id. 457). (Simmons v. Saul, 138 U. S. 439, 459.)
The question of the fraud in the procuring of the judgment or decree of April, 1888, not having been open to the parties in the matter before the Probate Court in Massachusetts, where the judgment of the Supreme Court was necessarily given the same faith- and credit as it would have had here so long as it remained in force, the judgment in the Massachusetts court could not operate to give any greater authority to the judgment of the Supreme Court of this State than it already had, and it was subject, always, to unequitable action to set it aside upon the ground of fraud. We are forced to the conclusion, therefore, that the learned court at Special Term erred in holding the judgment of the Massachusetts court to be res judicata in the present action.
The judgment should be reversed, with costs.
All concurred (Goodrich, P. J., in separate opinion), except Jehus, J., not sitting;