Williams v. Williams

• Decision Date: 01 December 1891
• Citation: 29 N.E. 98,130 N.Y. 193
• Parties: WILLIAMS v. WILLIAMS.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 193

29 N.E. 98

WILLIAMS

v.WILLIAMS.

Court of Appeals of New York, Second Division.

Dec. 1, 1891.

Appeal from supreme court, general term, first department. Affirmed.

Action by Mary Williams against Cornelius Williams for divorce from bed and board. A judgment for plaintiff, awarding alimony, costs, and counsel fee was modified and affirmed by the general term. Defendant appeals.

The other facts fully appear in the following statement by BROWN, J.:

This action was brought to obtain a judgment separating the parties from bed and board forever, and was based upon an allegation that the defendant had abandoned the plaintiff in August, 1882, and refused to permit her to return to him. The defendant denied the allegation of abandonment, and alleged that the plaintiff had abandoned him in 1880. He further set up in his defense a judgment of divorce in his favor from the plaintiff, rendered in the district court of Ramsey county in the state of Minnesota, in January, 1884, which court was alleged to be a court of general jurisdiction under the laws of that state. The parties were married in this state in 1879, and the defendant resided here until August, 1882, when he removed to Minnesota. The plaintiff continued to reside in New York, and was at the commencement of this action a resident of this state. The summons and complaint in the Minnesota action were personally delivered to her while temporarily stopping in Philadelphia. The judgment roll in the Minnesota action was offered in evidence upon the trial and excluded. The court found as a fact that the defendant abandoned the plaintiff in August, 1882, and gave judgment in accordance with the prayer of the complaint.

Frank H. Platt, for appellant.

Austin G. Fox, for respondent.

BROWN, J., ( after stating the facts.)

The chief ground upon which the appellant asks a reversal of the judgment in this action is that the court erred in refusing to find as a conclusion of law that the plaintiffhad abandoned him two years prior to his leaving this state and taking up his residence in Minnesota. The evidence is substantially undisputed that the defendant refused to permit the plaintiff to live with him unless she absolutely gave up all intercourse with her mother. The parties were married in June, 1879, and lived together in a house in Fifty-Ninth street in New York until the latter part of April, 1880, when the lease thereof expired. When preparing to remove from this house the defendant's command to his wife was: ‘When you leave this house you are not to see your mother. * * * You shall not go where she is; you will have no communication with her; you shall not write to her; have no communication with her whatever. If you want to see your mother, you cannot go with me.’ The condition thus imposed upon the plaintiff was never withdrawn, and under it she refused to live with the defendant. The cause for this disagreement is not disclosed in the record, but the evidence amply justified the conclusion that the plaintiff was always willing to live with the defendant if he would permit her occasionally to visit her mother; and before he left the state she offered unconditionally and in good faith to return to him, and this he refused to permit her to do, but left New York, and took up his residence in Minnesota, where he procured a decree of divorce against her. Under these circumstances, it is clear that the defendant never had a cause of action in this state against the plaintiff for desertion. That term, as used in the law of divorce, contemplates a voluntary separation of one party from the other without justification, with the intention of not returning. It could not be said in this case that the plaintiff's act in leaving her husband was voluntary. It was coerced by a harsh and unnatural condition, and she was at no time unwilling to return and live with him as his wife if that condition was withdrawn. The evidence discloses nothing more than a temporary separation of the parties because of a disagreement. There was no desertion by either party, and neither, up to the time of the husband's refusal to receive the plaintiff in the summer of 1882, had a cause of action against the other. But upon the plaintiff's offer to return unconditionally the defendant was without legal excuse in refusing to receive her.

It is also claimed that it was error to refuse to a lmit in evidence the record of the Minnesota decree, and upon this point it is claimed that the rule heretofore prevailing in this state with reference to judgments of divorce rendered in other states against residents of this state, where there was no personal service of process within the...