Opinion
12-07-1892
GRAEFF v. GRAEFF.
Max Salinger, for petitioner. James Benay, for defendant.
Petition by John Graeff against Sarah Graeff for a divorce on the ground of desertion. Heard on pleadings and proofs in open court. Decree for petitioner advised.
Max Salinger, for petitioner.
James Benay, for defendant.
GREEN, V. C. This is a petition by the husband for a divorce on the ground of desertion, alleging that the wife deserted him on the 23d day or December, 1887. The wife denies the desertion, but admits that on or about the 15th day of December, 1887, she left the residence of her husband, and went to reside in another house, in the city of Bayonne, where they were both before living. Alleges that she was compelled to leave her husband by reason of his cruel treatment. That he frequently beat her, turned her and her children out of doors, and refused to permit her to reenter. She had left him on a previous occasion, but, upon his promise of better behavior, had returned, and lived with him again. That having been beaten by him, and threatened with other violence, she was afraid to reside there longer, and accordingly left,—the last time, with his full knowledge. That she has ever since lived in Bayonne, and supported herself and children, during which time the husband has failed to contribute anything towards their support. It appears by the evidence that these parties were married on the 9th of October, 1873, at Westchester, N. Y., and came to live in Bayonne five or six mouths thereafter, and have lived at that place ever since. The petitioner became the owner of a lot on which a house was built, which it appears he made over to his wife as an inducement for her to return and live with him on the occasion when she had previously left him. After this conveyance, she came back, and lived with him for about a year. His business took him away at 6:30 o'clock in the morning, and his custom was to return at 5:30 in the evening. At the time alleged in his petition, he returned and found the house empty. She had taken everything, even his trunk, and he did not know where she had gone until two days afterwards. He says that he went to see if she would not come back, and she said she would never live with him again; and he afterwards sent two friends, William W. Broker and Thomas Ward, who both, at the request of the husband, went to see the wife, and asked her to return, but she said she would not live with him again, but wanted him to support the children. She said to them that she never in tended to live with him again. The petitioner also testifies that she once left him with a man named Charles Eberts, who had been working for him, but who he had discharged, and his wife and Eberts were arrested at 2 o'clock at night at the Bayonne station. He stated that the wedding ring which he had given her when they were married she had parted with, and it was found in the possession of this man. Elijah Russell, a policeman at Bayonne, testified that he had arrested the man at the depot, and had arrested her as a witness, and that the man was committed for trial. The defendant, in her testimony, admitted having left her husband on one occasion, and said she had returned and lived with him until December 23, 1887, when she moved away. She says that she left him the first time on account of his cruel treatment; that he struck her with his fist, and threatened her more than once, and even kicked her, and threatened to kill her. She admits having got a conveyance of the property, but alleges that it was about to be sold, and that she arranged to save it, and says that on the occasion of her arrest she was going away to live out, and that she asked Mr. Eberts to carry her trunk, and knows nothing about the things which were found in his pocket. On cross-examination she said that the last time he beat her was a week before she left, in December, 1887. There is also testimony by other parties showing that there were occasions on which the petitioner had used violence towards his wife, and had addressed her with abusive and improper language; but the point is whether this was really the occasion of her leaving her husband, and since that time living away from him.
It appears that one cause of the difficulty between the parties was an intimacy which existed between the wife and a man named Ryan, who was a boarder at the house. Ryan's presence there was extremely distasteful to the husband, and he on several occasions ordered him away, and some of the acts of violence which were proved were the result of Ryan's presence. The intimacy between these parties was so great that the petitioner was so impressed with the impropriety of it as to believe that they had been criminally intimate, and made such charge the foundation of an action for divorce on the ground of adultery. That suit was brought on the 26th day of February, 1890, but on its trial before me, to whom it was referred, I advised that the allegation had not been sustained by the evidence. The statutory period for which a divorce for desertion could be granted had, however, expired before that suit was commenced; and, while the time which is occupied in the prosecution of a suit for adultery cannot be counted as part of the time alleged as an obstinate desertion, (Chipchase v. Chipchase, [N. J. Ch.] 22 Atl. Rep. 588, approved November terra, 1892,)the prosecution of such a suit cannot deprive a party of a cause of action which has ripened.
No opinion filed.
This defendant has left her husband no less than three times. On one occasion, early in her married life, she left him, and was found at 2 o'clock in the morning with a discharged employe of her husband; and in the possession of her companion was found the very wedding ring which her husband had given her when the marriage between them was solemnized. On another occasion she left the house almost simultaneously with a man whose presence the husband could not brook, and who he had repeatedly objected to her associating with,—one with whom she had maintained such a degree of intimacy as to give her husband reason to suspect that she had been untrue to him; and at the time of her examination she appeared to be living in the same house with this person. She left her husband at a time when he was absent. On that day he had gone to his work at half past 6 o'clock in the morning, and when he returned he found not only his wife but everything in the house,—even his own trunk,—had been removed. It does not appear from her evidence that they had any words or misunderstanding prior to his departure in the morning. Her own statement is that she had not received any 111 treatment from her husband for a week previous to this occasion. She therefore did not leave under any imminent danger, or fear of present injury. Taking into consideration her former conduct, I am induced to believe that she did not on this occasion leave her home in consequence of fear of personal injury, but that she voluntarily went away from him for the purpose of doing what she really did,— keeping a boarding house and sustaining herself. I will advise a decree in favor of the petitioner.