PITNEY, V. C.
Petition by Hedwig G. Renk against John Renk for a divorce. Heard ex parte by a special master. There was a report by the master refusing to advise a decree in favor of petitioner, and she excepts. Exceptions overruled.
McEwan & McEwan, for petitioner.
PITNEY, V. C. The ground of the petition is desertion by the defendant. The admitted fact is that the petitioner and defendant were living together in a flat in New York City, and on the 3d of January, 1893, she deliberately rented a house in Jersey City, and moved all her belongings from the New York flat to her new home in Jersey City, and has there resided ever since. In other words, the actual abandonment was by the wife, of the husband. The proof is that the husband remained in the New York house two or three days after his wife left, and then also left it. The wife justifies her conduct, and seeks to charge her husband with constructive desertion, on the ground that he treated her with such cruelty as substantially to drive her away from their home, relying upon the principle illustrated by the line of decided cases which had their culmination in this state in McVickar v. McVickar, 46 N. J. Eq. 490, 19 Atl. 249. The parties were married in 1881, and lived together until 1893, a period of nearly 12 years; the wife bearing five children, of whom two are living,—the oldest, a boy, born in 1882, who was sworn as a witness. The wife supported the family, in whole or in part, by following the trade of a dressmaker. The husband was a cigarmaker. And according to her account, furnished very little towards the expenses of living. During the last two or three years of their cohabitation, the wife, by reason of the drain upon her vital energies due to child-bearing, and her exertions to support the family, became very nervous. The husband was of an excitable disposition, but not inclined either to drink or to associate with other females; and, according to the testimony of the son and of the petitioner's brother-in-law, he was an honest, "square" man, and by no means inclined to quarrel. The son said that his father would rather run out of the house than fight. The wife testifies to a series of acts of physical violence committed by the husband upon her as the result of quarrels arising between them, mostly, as appears, on the occasion of complaints on her part that he did not contribute more money to the support of the family. On one occasion, about two or three years before the separation, she swears that he threatened to shoot her, and drew a pistol for that purpose. But her brother-in-law, who was present, swears that they had a violent word quarrel, and that the husband did get a pistol outof the closet, which was not loaded, and attempted, without success, to load it; that he at no time pointed it towards the petitioner, or threatened to shoot her, but did declare that he would shoot himself, and that he could not endure living with her any longer. On the morning before the final separation they had a violent quarrel, arising, as I infer from the wife's evidence, from the same cause,— failure on his part to contribute sufficient towards the family expenses. She admits striking him at that time with an iron stove-lie lifter. The son says that she hit him in the forehead, and she also threw, or attempted to throw, a cup at him, which was broken; that the father did not strike her, but that he was struck with the iron implement, caught her and held her up against the wall, and asked the boy to go for an ambulance and have her taken to an insane asylum. Taking all the evidence together, I think the master was entirely justified in coming to the conclusion that the wife was more to blame than the husband for the quarrels, and that there was no such treatment on his part as justified her in abandoning him. When served with notice of this action the husband stated, as he had previously stated, that he was glad to be rid of the petitioner, and admitted that he had himself abandoned her. This is clearly untrue, and cannot avail the petitioner in this case. The exceptions will be overruled.