Opinion
07-28-1906
GRADY v. GRADY.
Merritt Lane, for petitioner. Abner Kalisch, for defendant
Suit by James Douglas Grady against Amanda Ellen Grady for divorce. Petition denied.
Merritt Lane, for petitioner. Abner Kalisch, for defendant
EMERY, V. C. The husband's petition in this case, filed against his wife for a divorce for desertion, charges specially a desertion since the latter part of September or firstpart of October, 1899, and makes also the general charge of willful, continued, and obstinate desertion for two years before filing the petition, December 8, 1904. A previous bill for desertion, filed by the husband against the wife in this court on September 11, 1901, charged a desertion by the wife in January, 1899 when, as it was alleged, his wife drove him from their house, and refused thereafter to live with him. In this previous suit it appeared at the hearing that the husband, being taken ill, returned to his wife's home in Brooklyn, and lived with his family (consisting of his wife and two children), from December, 1900 to about February, 1901, when he again left their common residence. This separation in February, 1901, if it happened under circumstances constituting a desertion on the part of the wife (which was denied) was within a year of the time of filing the first bill, and the bill was dismissed on June 14, 1902, without prejudice to a future bill based on desertion claimed to occur after February 1, 1901. This decree in the former suit is set up as a bar to the special charge in the present petition of a desertion in 1899, and as to this charge the decree is a bar.
But the failure to make out the special charge of desertion does not preclude the petitioner from proving, under the general charge, desertion continued for two years before filing the petition. After the decree in the previous suit, the parties lived together again in a flat or apartment house, in 126th street, New York City, from about the 1st to the 19th day of August, 1902, when the husband again left his wife and family, and one of the questions which both parties have tried in this case is whether this separation, brought about by the husband's leaving, was a desertion by the wife. The husband claims that he left the house because he was struck and beaten by his wife, and turned out of the house by her. There was on that night a dispute between the husband and wife, in which blows were struck on both sides; but the wife and daughter, who were the only other persons in the flat at the time, contradict the husband's account, and make him out to have been the aggressor, and to have left the house of his own accord and without sufficient cause. As the husband himself did in fact leave the wife, any desertion on her part by reason of this separation is purely constructive, and cannot be made out by the husband's oath, without sufficient corroboration. This has not been produced. The corroboration relied on as to the occurrence of the 19th is the evidence of a Mr. Booth, petitioner's lawyer In New York, who says that on the 20th of August petitioner appeared at his office with his face battered and bruised, and said his wife had beaten him on the previous evening. Mr. Booth also swears that in a conversation with Mrs. Grady at his office, about September 24th, when she came to see him in response to a telegram, he told her of the condition of her husband on the 20th of August and of his charge against her. Mrs. Grady denies this statement of Booth, and the evidence, even if unimpeached, is not such as would justify founding a decree for divorce upon it The effect of it is impaired by reason of the fact that the letter of August 20th, written by Mr. Booth for the husband to his wife, does not refer to any beating of the husband by the wife, and directs the wife to come live with the husband at Jersey City at once. The letter speaks of the wife's disgraceful conduct on the night previous, which made it impossible for him to continue to live in the neighborhood where, as the letter says, she has brought disgrace upon him and herself; but its failure to refer to the husband's physical condition, and the offer at once to live with her again, affects the evidence of Mr. Booth as corroborating the husband on this point. At the hearing Grady also said that the neighbors in the apartment came out to see what the trouble was, but none of these are called in corroboration. So far as the decision of the case depends on the circumstances of the separation of the parties on August 19th, I hold, therefore, that the husband has failed to make out that this was a desertion by his wife, and I also find that on the evidence the separation was due to the fault of the husband.
The next question is whether, subsequent to August 19th, the wife was guilty of desertion, by reason of her failure or refusal to move to Jersey City, where, as the husband says, he had provided a home to which he requested her to remove. The husband, by letters of August. 20th and also of September 25th, requested or rather directed his wife to move to Jersey City, and informed her that he would not support her In New York. In relation to these letters, which, according to the husband's account, were the first communications with his wife on this subject after the separation, two questions fairly arise on the evidence: First, whether the offer or request to provide a home in Jersey City was an honest offer or attempt to restore his home with his wife and family: and, second, whether the wife refused to go with him.
I am inclined to think that the offer in the letters was not bona fide. The first letter, written the day after he left directed his wife to return to his home, 82 Montgomery street, Jersey City, where he had then only a small hall bedroom, for which he paid $1.50 per week, a payment he seems to have kept up, even after he went to live with his wife in New York, and in his letter he warned her against coming to his place of business in New York, and threatened to arrest her if she came there and made disturbances again. The wife made no reply to this letter, and on September 24th Mr. Booth, the petitioner's attorney, telegraphed Mrs. Gradyto come to his office, which she did. The evidence of Mr. Booth and Mrs. Grady as to this conversation is contradictory, but on September 25th Mr. Booth dictated another letter from Grady to his wife, from which and from Mr. Booth's evidence it would appear that Mrs. Grady supposed that a woman named O'Connor was keeping the house in Jersey City, to which her husband directed her to come. Mrs. Grady had found fault with her husband's living in this woman's house, and one object of the letter of September 25th was to inform her that the woman was not living there. Then followed this clause: "I have never desired you to live in the house with any one objectionable, and I now notify you that I am ready and willing to live with you and support you at any place in New Jersey, and will let you select the house; but I will not support you in New York." The letter did not expressly request a reply, and on October 1, 1904, Grady sent by registered mail a copy of the letter of September 25th, "as I have not heard from you in regard to the same."
On October 4th the wife, as she swears, wrote the following letter, the contents of which were proved by a copy taken by herself. "New York City, Oct 4, 1902. J. D. Grady, New York City—Dear Husband: If you have any real intentions to return to me and our children I will be only too happy to receive you, as it now is, it is a great struggle for me to feed and clothe us with the small allowance I receive from you. I have never refused to live with you and will go to any place fit to live in which you may select. I am ready at any time you may name to go with you and rent a place in New Jersey if you prefer that state, for it makes no difference to me where we live so long as we can live in peace and happiness, as we did for a great many years and until our unfortunate removal from the west to New York. Now if you mean to be honest with me and the children and really intend to live with us, come and see us and we can then arrange about looking for a place to rent. Your wife, [Mrs.] J. D. Grady, 4 Hancock Place, N. Y." Mrs. Grady says that she gave the letter to her daughter to deliver to her husband, and the daughter swears that she gave it to her father at his place of business in New York.
Grady, when first examined in reference to the letter, said on his cross-examination: "I don't remember that at present, but I would like to hear it read." After it was read, he further said: "I don't remember the letter, but I don't say I didn't receive it. Possibly I received that letter, but I don't remember it. I don't recall it to mind at present." Examined again in rebuttal to his daughter's evidence, he said he never received the letter, and that he was not in the city the 1st of October, 1902, but was in Boston during four to six days. Grady's own letter to his wife was dated in New York on October 1st, and seemed to require an answer at once to the September 25th letter. No mention is made in this letter of any proposed immediate absence, and as Grady does not now fix with any accuracy the dates of his absence, and as he never, after this letter of October 1, 1902, asked for an answer or referred to the subject again, the conclusion I reach on the whole evidence relating to it is that the letter was received and that Grady never answered it.
The wife's doubts as to his good faith of the offer of a home, made in the letters of August 20th and September 25th, were in my judgment entirely justified, and they were honestly expressed in the letter of October 4th. The failure of the husband after this time to renew his offer or attempt to remove her doubts confirms this view. At any rate, the result of the whole correspondence and communication between the parties, up to October, 1902, is that the wife had not up to that time willfully or obstinately deserted her husband. After the October letters no further interviews or communications in relation to living together seem to have taken place between the parties, until about 1903, when proceedings were taken by the wife in a New York court to compel support by the husband. The wife in December, 1902, had not willfully or obstinately deserted her husband, and the petitioner has therefore failed to make out a case under the statute, and the petition should be dismissed.
A fair question was raised on the evidence as to the petitioner's bona fide residence in New Jersey, and the decision of it is not without difficulty. Upon the whole evidence on this subject, taken before me at this hearing and also in the previous case, I think, however, that this question should be decided in the petitioner's favor. But the petitioner's statement on this hearing, that even after he returned from New Jersey to live with his wife in New York, in August. 1902, he still retained his residence in New Jersey, and continued to pay room rent there, if it can be relied on for the purpose of establishing his continued residence in New Jersey, affects to some extent reliance on his good faith in again taking up his residence with his wife, and in the separation shortly after, followed, as it was, by the immediate formal offer in writing of a home in New Jersey.
The petition will be denied, with costs.