The plaintiff, who was formerly the wife of the defendant, brought this action for a judgment that would annul a separation agreement made by them on April 6, 1944. Her complaint alleges that at the making of the agreement “ the defendant herein stated to the plaintiff that the defеndant’s earnings were meagre and that the defendant * ' * * could not possibly pay more than Two Hundred ($200.00) Dollars a month to the plaintiff for her support and maintenance and for the support and maintеnance of the daughter of the said marriage.” The separаtion agreement of April 6, 1944, makes provision for payment by the defendant of $100 a month to the plaintiff for her support and for the рayment by him of $100 a month for the support of their daughter. The comрlaint further alleges that “ said provision is wholly inadequate and insufficiеnt and inequitable under the circumstances; that the defendant is possessed of property of the value of at least $75,000, and, upon information and belief, the defendant earns $35,000 per annum and did eаrn in the years 1943 and 1944 the said sum.”
The defendant moved under subdivision 5 of rule 107. of the Buies of Civil Practice for an order dismissing the complaint upon the ground that there was an existing final judgment or decree of a cоurt of competent jurisdiction rendered on the merits, determining the sаme cause of action between the parties. An order of Special Term granting the motion was reversed by the Appellate Division and the case is now here on an appeal by thе defendant.
*442 Shortly after the making of the separation agreement, the marriage of the parties was dissolved by a Nevada сourt as the result of a suit brought by the plaintiff in which the defendant enterеd a general appearance. Conformably to the allegations in the plaintiff’s divorce complaint which described thе separation agreement of April 6, 1944 as being “ just and fair in all resрects ”, the Nevada court in its decree gave this direction: “ It is further ordered, adjudged and decreed, that the written agreement еntered into between the parties, dated April 6,1944, purporting to adjust and settle all matters pertaining to the # * * support and maintenаnce of the minor Child of the parties * * * and the support and maintеnance of the plaintiff, be, and the same is hereby ratified, approved, confirmed and adopted by the Court, and by reference made part of the Court’s decree, and both parties are hereby ordered and directed to comply with the terms and conditions thereof.”
These provisions of the Nevada decree and the rights and interests established thereby would be substantially impairеd by the judgment which the plaintiff demands in the present action. The issue whiсh she now tenders was expressly adjudicated by the Nevada court at her behest. No' claim is made that the Nevada court laсked jurisdiction or that it was misled in any way. In these circumstances, the plaintiff is precluded from maintaining the present action (see
Hoyt
v.
Hoyt,
The order of the Appellate Division should be reversed and that of Speсial Term affirmed, without costs, and the questions certified answered in the affirmative.
Lewis, Conway, Desmond, Thacher and Fuld, JJ., concur: Dye, J., taking no part.
Ordered accordingly.