Davis, J.
The plaintiff brought this action to recover arrears unpaid on a judgment for divorce granted by the Court of Chancery of New Jersey (entered nisi May 21, 1927; final decree August 22, 1927), which provided, among other things, that the husband should pay ten dollars each week for the support of his infant son, whose custody was awarded to the wife. This judgment has never been modified. The defendant is a resident of this State.
The parties were married in France on September 17, 1918. After the war they returned to this country and made their home in Yonkers, N. Y., where the child was born. Later they moved into New Jersey, and it was there that the husband brought a suit against his wife for divorce. The decree granted the divorce, gave the custody of the child to the wife, provided for the right of visitation by the father and for support of the child by him.
Shortly after the decree was granted the wife returned to the home of her parents in France, taking with her the child, although the decree and the statutes of New Jersey provided that the child should not be removed from the jurisdiction of that State without the consent of the father or the court. She has resided in France since that time. During the brief period that the plaintiff remained in New Jersey the defendant paid the weekly sum for the support of the child and made some visitations to him. Since the departure of the plaintiff he has paid nothing, and about $7,000, in arrears and interest, has accumulated, which is the subject of this suit.
The remedy that plaintiff seeks is to recover the sum now due and, in addition, to secure and enforce the payments which will accrue in the future, under the provisions of sections 1171 and 1172 of the Civil Practice Act.
[654]*654After issue had been joined, the defendant moved for leave to serve an amended answer, to allege in effect that the New Jersey decree was not unalterable and did not constitute a final judgment, to which full faith and credit must be given by the courts of this State under the provisions of section 1 of article 4 of the Constitution of the United States. The motion was granted, and on appeal to this court the order was affirmed. Unnecessarily, it was said in the memorandum decision that this was a valid defense and that the New Jersey decree, in so far as it provided for the support of a wife or child, was not final. (249 App. Div. 660.) At that time the plaintiff’s counsel admitted in his brief that the judgment was not final, but stated that he was seeking his remedy under the provisions of the sections of the Civil Practice Act above cited. His attitude changed on the trial, but the learned official referee justifiably followed what had been said by this court on the former appeal and held that the judgment was not final. The question now is directly raised and must be considered on this appeal.
The majority of the court now believe, on furthur study, that the judgment is final. At the time of the former appeal the courts of New Jersey had not passed on the question as to whether a judgment in such case might be revised or amended retroactively. Since" that time decisions in the lower courts of that State have held that no such power resides in the courts.
On principle, a judgment for alimony or support of a child, sought to be enforced in another State, is considered a “ debt of record, until the decree has been recalled, as any other judgment for money is ’ ’ (Barber v. Barber, 62 U. S. [21 How.] 582, 595); and as to the amount accrued, “ the courts of this State should give it full credit and effect.” (Lynde v. Lynde, 162 N. Y. 405, 417; affd., 181 U. S. 183.) It was held in the case last cited that the judgment would be enforcible only by execution, and that as to future payments which remained subject to the discretion of the Chancellor, no remedy could be afforded. That decision was made prior to the amendment, in 1904, of the statute (Code Civ. Proc. §§ 1772, 1773) giving other remedies, now found, with some changes, in sections 1171 and 1172 of the Civil Practice Act.
The question of the finality of such a decree in a matrimonial action reached the United States Supreme Court again in Sistare v. Sistare (218 U. S. 1), where the husband had failed to pay anything for the support of his child as the judgment rendered in this State required. He was sued in the courts of Connecticut, and it was there held that the judgment was not final. (80 Conn. 1; 66 A. 772.) That judgment, was reversed on appeal to the United [655]*655States Supreme Court, which reconsidered the Barber and Lynde cases. It was said (pp. 16, 17): “ First, that, generally speaking, where a decree is rendered for alimony and is made payable in future installments the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments, * * *. Second, That this general rule, however, does not obtain where by the law of the State in which a judgment for future alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.”
The court then considered the power of a State court to modify a decree under its statute, and, after stating the New York statute on the subject, said (p. 22): “ But it is equally certain that nothing in this language expressly gives power to revoke or modify an installment of alimony which had accrued prior to the making of an application to vary or modify, and every reasonable implication must be resorted to against the existence of such power in the absence of clear language manifesting an intention to confer it.” (See, also, Yarborough v. Yarborough, 290 U. S. 202; 2 Beale, Conflict of Laws, pp. 1392, 1393.)
In respect to the statutes of different States in relation to this power to modify a decree retroactively, there is variance, but it is safe to say that in general the right to modify, as in this State, pertains to the future where changed conditions warrant such modification, rather than to a power to disturb the finality of the original decree, unless some reservation is made in the decree itself. (See Rowe v. Rowe, 76 Ore. 491; 149 P. 533; Levine v. Levine, 95 Ore. 94; 187 P. 609; S. C., 121 Ore. 44; 252 P. 972; Mayer v. Mayer, 154 Mich. 386; 117 N. W. 890; Bentley v. Calabrese, 155 Misc. 843; Tiedemann v. Tiedemann, 172 App. Div. 819; affd., 225 N. Y. 709; writ of error dismissed, 251 U. S. 536; Cowles v. Cowles, 203 App. Div. 405; appeal dismissed, 235 N. Y. 559; Cowles v. Cowles, 80 N. H. 530; 120 A. 76; Gould v. Gibson, 180 Mo. App. 477; 166 S. W. 648.)
The New Jersey statute (N. J. P. L. 1907, p. 481, § 25) provides: “
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Davis, J.
The plaintiff brought this action to recover arrears unpaid on a judgment for divorce granted by the Court of Chancery of New Jersey (entered nisi May 21, 1927; final decree August 22, 1927), which provided, among other things, that the husband should pay ten dollars each week for the support of his infant son, whose custody was awarded to the wife. This judgment has never been modified. The defendant is a resident of this State.
The parties were married in France on September 17, 1918. After the war they returned to this country and made their home in Yonkers, N. Y., where the child was born. Later they moved into New Jersey, and it was there that the husband brought a suit against his wife for divorce. The decree granted the divorce, gave the custody of the child to the wife, provided for the right of visitation by the father and for support of the child by him.
Shortly after the decree was granted the wife returned to the home of her parents in France, taking with her the child, although the decree and the statutes of New Jersey provided that the child should not be removed from the jurisdiction of that State without the consent of the father or the court. She has resided in France since that time. During the brief period that the plaintiff remained in New Jersey the defendant paid the weekly sum for the support of the child and made some visitations to him. Since the departure of the plaintiff he has paid nothing, and about $7,000, in arrears and interest, has accumulated, which is the subject of this suit.
The remedy that plaintiff seeks is to recover the sum now due and, in addition, to secure and enforce the payments which will accrue in the future, under the provisions of sections 1171 and 1172 of the Civil Practice Act.
[654]*654After issue had been joined, the defendant moved for leave to serve an amended answer, to allege in effect that the New Jersey decree was not unalterable and did not constitute a final judgment, to which full faith and credit must be given by the courts of this State under the provisions of section 1 of article 4 of the Constitution of the United States. The motion was granted, and on appeal to this court the order was affirmed. Unnecessarily, it was said in the memorandum decision that this was a valid defense and that the New Jersey decree, in so far as it provided for the support of a wife or child, was not final. (249 App. Div. 660.) At that time the plaintiff’s counsel admitted in his brief that the judgment was not final, but stated that he was seeking his remedy under the provisions of the sections of the Civil Practice Act above cited. His attitude changed on the trial, but the learned official referee justifiably followed what had been said by this court on the former appeal and held that the judgment was not final. The question now is directly raised and must be considered on this appeal.
The majority of the court now believe, on furthur study, that the judgment is final. At the time of the former appeal the courts of New Jersey had not passed on the question as to whether a judgment in such case might be revised or amended retroactively. Since" that time decisions in the lower courts of that State have held that no such power resides in the courts.
On principle, a judgment for alimony or support of a child, sought to be enforced in another State, is considered a “ debt of record, until the decree has been recalled, as any other judgment for money is ’ ’ (Barber v. Barber, 62 U. S. [21 How.] 582, 595); and as to the amount accrued, “ the courts of this State should give it full credit and effect.” (Lynde v. Lynde, 162 N. Y. 405, 417; affd., 181 U. S. 183.) It was held in the case last cited that the judgment would be enforcible only by execution, and that as to future payments which remained subject to the discretion of the Chancellor, no remedy could be afforded. That decision was made prior to the amendment, in 1904, of the statute (Code Civ. Proc. §§ 1772, 1773) giving other remedies, now found, with some changes, in sections 1171 and 1172 of the Civil Practice Act.
The question of the finality of such a decree in a matrimonial action reached the United States Supreme Court again in Sistare v. Sistare (218 U. S. 1), where the husband had failed to pay anything for the support of his child as the judgment rendered in this State required. He was sued in the courts of Connecticut, and it was there held that the judgment was not final. (80 Conn. 1; 66 A. 772.) That judgment, was reversed on appeal to the United [655]*655States Supreme Court, which reconsidered the Barber and Lynde cases. It was said (pp. 16, 17): “ First, that, generally speaking, where a decree is rendered for alimony and is made payable in future installments the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments, * * *. Second, That this general rule, however, does not obtain where by the law of the State in which a judgment for future alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.”
The court then considered the power of a State court to modify a decree under its statute, and, after stating the New York statute on the subject, said (p. 22): “ But it is equally certain that nothing in this language expressly gives power to revoke or modify an installment of alimony which had accrued prior to the making of an application to vary or modify, and every reasonable implication must be resorted to against the existence of such power in the absence of clear language manifesting an intention to confer it.” (See, also, Yarborough v. Yarborough, 290 U. S. 202; 2 Beale, Conflict of Laws, pp. 1392, 1393.)
In respect to the statutes of different States in relation to this power to modify a decree retroactively, there is variance, but it is safe to say that in general the right to modify, as in this State, pertains to the future where changed conditions warrant such modification, rather than to a power to disturb the finality of the original decree, unless some reservation is made in the decree itself. (See Rowe v. Rowe, 76 Ore. 491; 149 P. 533; Levine v. Levine, 95 Ore. 94; 187 P. 609; S. C., 121 Ore. 44; 252 P. 972; Mayer v. Mayer, 154 Mich. 386; 117 N. W. 890; Bentley v. Calabrese, 155 Misc. 843; Tiedemann v. Tiedemann, 172 App. Div. 819; affd., 225 N. Y. 709; writ of error dismissed, 251 U. S. 536; Cowles v. Cowles, 203 App. Div. 405; appeal dismissed, 235 N. Y. 559; Cowles v. Cowles, 80 N. H. 530; 120 A. 76; Gould v. Gibson, 180 Mo. App. 477; 166 S. W. 648.)
The New Jersey statute (N. J. P. L. 1907, p. 481, § 25) provides: “ Pending a suit for divorce or nullity, or after decree of divorce, it shall be lawful for the Court of Chancery to make such order touching: the alimonv of the wife, 2nd also touching the care, cus[656]*656tody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall be rendered fit, reasonable and just, * * * orders so made may be revised and altered by the court from time to time as circumstances may require.”
Obviously, this statute looks to future modification, as does our own statute, similar in its terms. (Civ. Prac. Act, § 1170.) At no time prior to our former decision had the courts of New Jersey in any reported case passed directly upon the subject of the finality of the original decree in respect to support and maintenance, although in at least one case the subject was considered but left undecided. (Warren v. Warren, 92 N. J. Eq. 334; 112 A. 729.) Since the former decision in this case there have been decisions of the lower courts to the effect that there is a vested right to past due installments for maintenance. (Hatch v. Hatch, 15 N. J. Misc. 461; 192 A. 241; Poeter v. Poeter, 15 N. J. Misc. 691; 194 A. 792; Flavell v. Flavell, 15 N. J. Misc. 167; 189 A. 639; Stewart v. White, 15 N. J. Misc. 542; 192 A. 839.) These decisions, while not compelling, “ must be deemed persuasive.” (Kettel v. Erie Railroad Co., 176 App. Div. 430, 432; affd., 225 N. Y. 727.) The view that the New Jersey statute has no retroactive effect is supported by the rule laid down in the Sistare case (supra) that “ every reasonable implication must be resorted to against the existence of such power in the absence of clear language manifesting an intention to confer it.” Therefore, I reach the conclusion that the judgment, in so far as it dealt with sums unpaid, was final.
Other questions remain to be considered. What defenses may legally be interposed against the collection of this judgment? There is some confusion in the authorities as to whether this type of action is legal or equitable. (See Moore v. Moore, 143 App. Div. 428; affd., 208 N. Y. 97. Cf. Beeck v. Beeck, 211 App. Div. 720; Miller v. Miller, 219 id. 61; Boissevain v. Boissevain, 252 N. Y. 178, 182.) The judgment stands as one to which full faith and credit must be given. It constitutes a debt against which no defense originally available to defendant is now valid, but that does not deprive the defendant of defenses, either legal or equitable, arising since the rendering of the judgment. A legal defense would be subsequent payment, either by the judgment debtor or by a volunteer. Naturally, this defense would be raised by the answer. If this action had been brought by the plaintiff in her own interest for alimony, awarded to her, the equitable defense that she had acted in defiance of the decree or the laws of the State and deprived the husband of the right of visitation to his child might be considered; but she is [657]*657not seeking payment for herself, but for the child, and the provision for his support was not made conditional on the father’s right of visitation. As was said by Crane, J., in Laumeier v. Laumeier (237 N. Y. 357, 364): “ The husband did not divorce his child, or dissolve his liabilities to it. And what are those rights? The child is entitled to the support and maintenance by its father.” (See, also, Schweig v. Schweig, No. 2, 122 App. Div. 787; Dube v. Dube, 230 id. 494; Altschuler v. Altschuler, 246 id. 779; S. C., 248 id. 768; Silkworth v. Silkworth, 255 id. 226.)
The same rule apparently is applied in New Jersey where the child has been removed from the jurisdiction in violation of the statute and of the decree, and the husband has refused to pay for the support of the child on that ground. (Feinberg v. Feinberg, 72 N. J. Eq. 810; 66 A. 610.)
Therefore, the defense that the plaintiff had violated the New Jersey decree in respect to visitation is not available to the defendant here to defeat the right of the child to support by the father, in view of the fact that the decree in respect to payment was not made conditional on such right of visitation.
As already stated, this judgment is a debt. In terms it provided weekly payments for the support and maintenance of the child. If such support has been provided either by plaintiff or by a volunteer who acted without expectation or claim of reimbursement, the debt is paid. (Swanton v. Curley, 273 N. Y. 325; Silkworth v. Silkworth, supra.) It is not uncommon for a wealthy divorced wife or her parents to assume the duty of supporting children instead of imposing the obligation on a husband and father of limited means. The obligation of the father to support his child always exists, but is measured in this case in definite terms by the judgment. The payment by another without expectation of reimbursement would satisfy the obligation. Neither the wife nor the child would be aggrieved if, though the father were recreant, support and maintenance had been supplied. In case of a judgment, no longer would there be a “ debt.” (Brill v. Brill, 148 App. Div. 63; Barrett v. Barrett, 221 id. 710.)
For ten years the plaintiff made no move to collect any sums due for the support of her child and left defendant in apparent peace and security. It appears in the record that she lived with her parents in Calais, France, and was at certain periods gainfully employed. The record does not disclose, with any degree of certainty, whether her parents possess property or whether protests against non-payment or demands for payment were made either by plaintiff or her parents. In other words, the record does not [658]*658indicate whether dependence on the father’s support was voluntarily abandoned, or whether support was given with expectation of reimbursement. An attempt was made to offer some evidence on this subject, but it was excluded. The plaintiff did not appear on the trial, but her deposition, taken in France, was read. If such support was rendered to the child by any one without claim or demand for reimbursement, I think that the plaintiff is not entitled to recover, for in such case the purpose of the judgment would be defeated and the plaintiff would be unjustly enriched, if permitted to recover for something already rendered voluntarily by another. The question is not whether the husband has failed in his duty to pay for support as directed, but whether the child has been deprived of maintenance and education. However, the wife is entitled to show that such payments were not made voluntarily, and notice thereof was given and demands for reimbursement were made.
In view of this state of facts the judgment must be reversed and a new trial granted so that this material issue may be tried.
Another defense interposed was that of the Statute of Limitations. As the record stands it is unavailing to defendant. (Civ. Frac. Act, § 44.)
The plaintiff seeks the remedies in the form of sequestration, contempt, receivership, and the like, given in such action by the provisions of sections 1171 and 1172 of the Civil Practice Act. These remedies, provided by reciprocal statutes, have for their purpose the prevention of escape of liability by a delinquent husband and father by his departing from the State where the decree was granted and where it would ordinarily be enforced. Such remedies are in large measure discretionary. As to future payments, the judgment is subject to modification by the New Jersey court. The question of relief in these respects must await proof on the trial.
It follows that the judgment should be reversed and a new trial granted, with costs to abide the event.
For the purpose of a new trial all findings of fact should be reversed and the conclusions of law disapproved.
Taylor and Close, JJ., concur; Hagarty, J., dissents in part and writes for reversal and to grant judgment to plaintiff for the accrued installments, together with interest; Johnston, J., dissents and writes for affirmance.