Opinion
No. 50/369.
01-11-1924
LEDERER v. LEDERER.
Weinberger & Weinberger, of Passaic, for petitioner. John M. Bell, of Rutherford, for defendant.
Petition for divorce by Henry Lederer against Justy Lederer, in which the defendant filed a counterclaim. Petition and counterclaim dismissed.
Weinberger & Weinberger, of Passaic, for petitioner.
John M. Bell, of Rutherford, for defendant.
BENTLEY, V. C. This is a petition for divorce filed by the husband, to which the defendant answered and filed a counterclaim.
At the conclusion of the proofs I indicated to counsel that I did not see how I could grant the prayer of the petitioner, because of the requirement of our statute that a desertion shall have existed for two years prior to the commencement of the suit.
The parties cohabited until some time in the month of July, 1920—the petitioner says the 5th, and the defendant says about the middle or the 20th of the month. She was engaged in running a candy store in East Rutherford, and complained that she was receiving no assistance from him, whereupon she engaged one Philip Schaub, who did most of the work around the place, and, he says, she became too familiar with him. The defendant, who left his wife on other occasions and then came back, appears to have taken this as an excuse and disappeared from the home, never having returned thereto. This actual separation and desertion, if such it was, as 1 have said occurred some time during the month of July, 1920. Therefore, under the case of Koch v. Koch, 79 N. J. Eq. 24, 80 Atl. 113, the cause of action did not arise until some time during the month of July, 1922, notwithstanding which the original petition shows that it was filed on August 23, 1921, or almost eleven months before the statutory period had elapsed. Subsequently and after the expiration of that period, an amended petition was filed, under date of July 18, 1922. When I say after the completion of the statutory period I mean assuming that the date of the desertion alleged by the petitioner is correct. His counsel urges that the time should be calculated from the date of the desertion to the date of the filing of the so-called amended petition.
With this I cannot agree. It is said in Daniell's Chancery Pleading and Practice (6th Am. Ed.) *402, after describing the amending of a bill of complaint:
"But, although it is the practice to call a bill thus altered an amended bill, the amendment is in fact esteemed but a continuation of the original bill, and as forming a part of it; for both the original and amended bill constitutes but one record; so much so that, where an original bill is fully answered, and amendments are afterwards made, to which the defendant does not answer, the whole record may be taken, pro confesso, generally, and an order to take the bill pro confesso as to the amendments only will be irregular."
To the same effect will be found the opinion in Equitable Life Assurance Society v. Laird, 24 N. J. Eq. 319, affirmed in 26 N. J. Eq. 531. Of course, it requires no argument that the effect of amending a petition is precisely the same as amending a bill.
Even were this not so, the argument made by counsel would be of no avail to hisclient, because, If the amendment were the commencing of a new suit, as it is not, he would then be faced by the rule laid down in Marsh v. Marsh, 14 N. J. Eq. 315, 82 Am. Dec. 251; Chipchase v. Chipchase, 48 N. J. Eq. 549, 22 Atl. 588; Drayton v. Drayton, 54 N. J. Eq. 298, 38 Atl. 25, and a number of other cases to the same effect, that the separation by a wife from her husband, while proceedings at his instance are pending against her, does not constitute a willful desertion in contemplation of law. In this case, the original petition charged the defendant with adultery, and certainly her husband could not complain of her living apart from him from that time on; so that the running of the statute was stopped from August 23, 1921, and no more time had elapsed for the purpose of this ease at the time the amended petition was placed on file.
Nor do I see how any relief can consistently be given to the defendant on her counterclaim. She has testified to a state or facts, slenderly but perhaps sufficiently corroborated, which would entitle her to a decree, were it not that her husband's desertion, assuming her story to be true, lacked the necessary quality of obstinacy. She testified that she was through with him, or had grown tired of him, or had had enough of him, or some such statement, and admitted that he had written her letters asking her to take him back so that they might "start all over again." This being so, the separation of these parties was quite as agreeable to her as it was to him, and she certainly cannot now be heard to complain against it and ask the assistance of this court.
I will advise that both the petition and counterclaim be dismissed.