Opinion
April, 1929.
Present — Kapper, Rich, Hagarty, Carswell and Scudder, JJ.
Interlocutory judgment unanimously affirmed, without costs. We are of opinion that the matrimonial domicile of both plaintiff and defendant continued from the date of the marriage to the commencement of the action in the county of Kings in this State. The absence of the plaintiff husband in the State of New Jersey after he and his wife had agreed to live separate and apart did not change her matrimonial domicile nor his. We are not, therefore, concerned with the 2d subdivision of section 1147 of the Civil Practice Act, which permits an action for divorce to be maintained where the parties were married in this State. Expressions will be found in the cases to the effect that such an action may be maintained where the parties were married within this State. ( Becker v. Becker, 58 App. Div. 376; Ackerman v. Ackerman, 200 N.Y. 72, 76.) Powell v. Powell ( 211 App. Div. 750) does not decide to the contrary, for there the parties, immediately following the marriage, left the State of New York "to establish a matrimonial domicile in the State of New Jersey." The wife here remained in the matrimonial domicile, and in theory the husband's domicile was that of his wife. ( Gould v. Gould, 201 App. Div. 670, 673.)