Opinion
February 26, 1952.
Present — Peck, P.J., Callahan, Van Voorhis, Shientag and Bergan, JJ. [See post, pp. 986, 987.]
The Nevada decree establishes that there were grounds under the law of that State for a divorce between plaintiff and defendants' testator, the binding force of which we must recognize. Plaintiff was no longer his wife when he died and could not have filed an election to take against his will pursuant to section 18 of the Decedent Estate Law. Plaintiff therefore contends that she is not suing for a share in his estate but for damages resulting from fraud in inducing her to sign the separation agreement. Such damages could only be measured, however, by the difference between what she received under the separation agreement and the amount of the support which would have been awarded to her in the absence of a separation agreement by the Nevada divorce court. Only the Nevada courts could determine this, and then only if the existing Nevada decree were modified or set aside. The complaint was correctly dismissed ( Calderon v. Calderon, 275 App. Div. 251; Fry v. Fry, 279 App. Div. 122). Judgment and order unanimously affirmed.