Tracy v. Tracy

• Decision Date: 04 March 1901
• Citation: 62 N.J.E. 807,48 A. 533
• Parties: TRACY v. TRACY.
• Court: New Jersey Supreme Court

48 A. 533

62 N.J.E. 807

TRACY

v. TRACY.

Court of Errors and Appeals of New Jersey.

March 4, 1901.

(Syllabus by the Court).

Appeal from court of chancery.

Suit by Catharine Tracy against John T. Tracy. From a decree for defendant (46 Atl. 657), plaintiff appeals. Reversed.

Malcolm MacLear, for appellant.

VOORHEES, J. The appeal in this case is taken from the decree of the court of chancery refusing the application of the petitioner for a divorce from the defendant, her husband, upon the ground of desertion. The testimony showed that the parties were married at Albany, N. Y., in November, 1890; that the defendant was employed in the office of the secretary of state there; that they lived together as husband and wife in Albany, N. Y., until December, 1804, when the husband deserted the wife, leaving her in a boarding house, with an unpaid board bill, and has not rejoined or been with her since, or in any way contributed to her support; that after such desertion she continued to live in Albany, supported by her father-in-law (the father of her former husband), until May, 1897, when, his death having occurred, she removed on May 18, 1897, to New Jersey, and has continued to live in Newark since that time, at first boarding, and then conducting a boarding house of her own for over a year. Then she sold the boarding house, and has been in lodgings since. She made several visits during the summers to the house of friends near her former home, but left in Newark a large part of her personal property and wearing apparel. She says she left Albany permanently; her intention was to take up a residence in New York City, but, finding that too expensive for her means, she went over to Newark, where she had friends, and made that her permanent residence. She denies having come to New Jersey for the purpose of procuring a divorce. She denies having any thought or intention of securing a divorce when she first came. She states that her only object in leaving Albany was to avoid the unpleasant criticisms and comments of her acquaintances about her being deserted by her husband. She says when she came here her idea was to give up her home in Albany, and to live in New Jersey indefinitely; that she has not changed her purpose, but still expects to remain here, and it is her only residence and home. She produced several witnesses who testify to her coming here and to her remaining here, and to the continued desertion of her husband while here. The vice chancellor found that the evidence produced satisfactorily established the desertion contemplated by the statute, but advised against the divorce upon the ground that he did not believe that she came here for the purpose of giving up her home permanently and settling here, or that she had acquired a permanent or actual residence in New Jersey. He says in his opinion that, except for her acquaintances in Newark, there was nothing to bring her to New Jersey except to obtain a divorce, and nothing to keep her here after she had obtained it; and he relies upon the authority of McGean v. McGean (N. J.) 46 Atl. 656. This case materially differs from the one in hand. In McGean v. McGean the complainant testified that after her husband deserted her she consulted a lawyer in Brooklyn, who told her she could not secure a divorce in New York, and advised her to come to New Jersey and procure a residence for the statutory period. Her residence had been In Brooklyn. She came to Jersey City, and secured board there in a family for the statutory period, and spent much of her time at her home in Brooklyn, and then applied for a divorce, which was refused. Her avowed purpose in coming to New Jersey was to secure a divorce, while in the case in hand the petitioner, who is the only one who can testify on the subject, denies any intention of coming to New Jersey to secure a divorce. The fact...