[6 New Jersey Equity 542 (1847)]


[Recorder’s Summary:]


Insufficient proof of desertion, on petition for divorce.


The petition filed February 4th, 1846, states that the petitioner and the defendant were married February 27th, 1813, at Nimsfield, Gloucestershire, Great Britain; that after their marriage they came to America, and settled at Belleville, in the, county of Essex, in this state; and that from that place they removed to the city of New York, in the year 1837; that the defendant, her husband, lived with and supported the petitioner for about sixteen years after the marriage, until August, 1838, when he deserted her, anal left New York, and returned to Belleville, where he has resided for the last seven years. The petitioner charges a willful, continued and obstinate desertion for more than five years; and that, during all that time, he has wholly failed to make any provision for her support, and prays a divorce on that ground.


The defendant put in an answer.


He admits the marriage; states that he arrived in this country in 1827; settled at Belleville in 1828, and sent for his wife and children, who were then in Great Britain, and that they joined him at Belleville in that year. That in 1837 the peti­tioner, with James Croft, who married Susannah, their eldest daughter, moved to the city of New York; that Croft con­tracted to purchase, for $1200, half in cash and the balance at eight months' credit, the furniture, liquors and fixtures of a public house in Pearl street, New York, known as the “Brown Jug," and went into possession of said house; and that the defendant, in about three weeks thereafter, removed from Belleville to New York, and took up his residence with the petitioner at the said house.


He denies that he deserted his wife, as stated in the petition, and states that, some months after he moved to New York, as aforesaid, he left that city for Rahway, New Jersey, his object being to work at his trade, with a son of his by a former mar­riage, who lived there and carried on the business of a black­smith; that he left New York because the petitioner insisted on his quitting the said house in Pearl street, and that she gave him money in order to induce him to go, for that though the said house was nominally in his occupancy, and the business thereof was ostensibly carried on in his name, yet that the avails of the business were appropriated by the petitioner, or the said Croft, or both of them; that he remained in Rahway until March, 1838, during which time he was in the habit of visiting his family in New ‑York, from time to time, and remaining a day or two; that during these visits he was made to sleep in the bar‑room, and debarred from the enjoyment of his rights as a husband; that in March, 1838, he returned to Belleville, where he remained until July, 1838, and that from that time until June, 1839, he resided at New Brunswick and Millstone, in New Jersey; that in June, 1839, he returned to his family in New York, where he remained until February, 1840, and during this time was treated with much indignity by his wife, and was not admitted to his marital rights; that from February, 1840, he has resided in Belleville, in this state.


He denies that he has ever deserted his wife; says that his home is at Belleville, and is ever open to receive his wife and children; that his wife and children have, several times, within the last five years visited him there; that he has been in the habit of visiting his wife and family in New York, repeatedly, every year since their residence there, until the 29th September last, (1815,) when the petitioner told him that if he would take care of himself, she would take care of herself; that he then offered his protection to her and the children, if she would return to Belleville; that she refused to comply, refused to shake hands with him, and told him never to come back again.


He states that of the $1200, the cost of the furniture, liquors, &c., of the said public house in Pearl street, he paid $1000, and states how he did it, and what property he conveyed and mortgaged to do it, and to whom; that his household and kitchen furniture was removed from Belleville to the said house in New York, the value of which, added to other articles either purchased or paid for by him, would amount to $500, making, alto­gether, $1500, which he has advanced for the support of the petitioner and family, and that not an article or dollar of it has ever been returned to him; that it was by the avails of his capital, thus advanced, that the petitioner has been enabled to establish herself in New York in a lucrative business; that she now conducts a public house, as landlady thereof, situate in Canal street, in New York, known by the name of " Madison Hall," the rent of which is $400, as he has been informed and believes; and that she now conducts herself as a feme sole, her name appearing in the directories of said city as "Mary Ford, widow, 48 Canal street;"  he states that the petitioner has made large sums of money by trading on his capital aforesaid, which legally belongs to him, and gives an instance of the purchase of a lot of land in Belleville by her, two or three years ago, the deed for which was, by her directions, made out to one Daniel Samson of the city of New York; he says that he is anxious that his wife and family should return to his domicile in Belleville; that he has always been, and is now ready to receive them, and afford them his protection and support.


Sarah S. Smith, a married daughter of the parties, testifies that in 1837 her brother‑in‑law, Croft, and her parents bought the said public house in Pearl street, New York; that her father was then carrying on the blacksmith's business in Belleville, New Jersey ; that it was thought best that her father should remain in Belleville anal carry on his business; that she was left to keep house for her father; that her father, herself, and furniture were afterwards removed to New York, to said house in Pearl street; it was called the Brown Jug; there her father, mother, brother‑in‑law, Croft, and all the family lived; mother assisted in the work for the boarders; her father and Croft at­tended in the business; the business was not as good as they expected, and her mother said that some of the family had bet­ter go to work, and, accordingly, Croft went to the country and got work and sent for his wife; her father then attended to the business himself; he was unsteady; mother said father had better go to work in New York and get some money; he did not get work in New York; he went to the country; he re­turned in about a month; mother asked father for money, after his return from the country; he said he had none, she had all the money; she said she had not any to pay the bills with, and they were landing in every day; her fattier was cross about it; said the business ought to be better, and abused her mother about it; he stayed some days, and then went to the country again ; he asked mother for money to pay his fare, and she gave it to him; this was in 1838, she thinks, while they lived at the Brown Jug; in April, 1839, their furniture, fixtures, and everything were sold for rent; they had nothing left but what the law allowed them; a gentleman by the name of Samson, a liquor merchant, told mother if she would get a store he would stock it with liquors, on trust; but mother was quite discouraged and said no, everything was gone; witness and mother took a small store in Duane street, and one room ; father came into the store in Duane street, on the 4th of July, 1839; he passed in and out of the store, and scarcely spoke to witness or her mother; as he was passing out, mother asked him to stay; he spoke abuseful to her, and passed on; we did not see him again until two days after, when he came home and remained a few days, and then went into the country; he gave no money to any of the family, that witness knows of;  he was obliged to sleep in the bar‑room, for we had only one room besides.


They moved from Duane street, in May, 1810, to West Broadway; by their industry and exertions they got sufficient money to take a larger place; the one in Duane street was too small; they received no assistance from father; he never lived at home with them after the close of 1838 ; he has called, occasionally, ever since, to see his family, but never made it his home, or as­sisted them in any way.


On cross‑examination, she says‑-Mother now attends busi­ness at 415 Broadway; she has done business there since the 1st of May last, (1846 ;) before that time she resided and did business at 48 Canal street; it was tavern or saloon; kept a bar and took boarders; it was called "Madison Hall," which appeared in the directory as Mary Ford, widow, 48 Canal street; they lived four years at 48 Canal street; mother leased it; the rent was $100 a year; the lower part of the house, mother rented out; she does not know who leases the property 415 Broadway, her sister or mother, or who pays the rent; the busi­ness at 415 Broadway is profitable; she does not know that her father has any of the avails of it; she has not seen her father in the last six months; witness was away from her mother from May; 1841, when she was married, until April, 1843; it was an agreement between father and mother that father should go into the country for work; when Mr. Samson made advances of liquor he took no security; we had none to give; she don't know that his bill for liquors has ever been paid; father has a son, a half‑brother of witness, at Rahway, New Jersey; he is a black­smith; father and Mr. Croft paid for the fixtures, &c., at the Brown Jug.


A son was sworn on the part of the petitioner, but testified nothing material.


Mary Ann Ford, a daughter of the parties, aged 12 years, was sworn for the petitioner.—She says her father lives in Belle­ville; that he has never been at home more than one or two days at a time, since she can recollect; he then behaved very cross to mother; always scolded her; mother was afraid of him; when he came there she would lock herself up in a room; she locked herself up that he might not hurt her; when he came, he was sometimes sober, but generally intoxicated; when wit­ness saw her father coming, she would run and tell her mother, that she might run and lock herself up. Witness and her little sister used to run and hide under the bed, that father might not see them, for if he saw them he would make them tell where mother was; father never bought bee any clothes but once or twice; on the 4th of July gave her a sixpence or tenpence.


On cross‑examination, she says she used to run and tell her mother when her father was coming, without being told by her mother to do so ; she knows her father lives in Belleville, because she has been there; she was there about two or three years ago with a younger sister; they stayed at a neighbor's; sometimes was at father's during the clay; mother put them in the stage, and paid their fare to Belleville; they stayed about a week ; slept at a neighbor's; ate in father's house once or twice; father put them in the stage to go to New York; mother paid the fare when we got to New York; mother was never cross to father when he came to New York; she knows her father was cross to her mother, because she (witness) was there; mother was not always locked up in the room ; she knows her father wanted to hurt her mother, because he looked so cross at her; she never heard her father say he came there to hurt her mother; no person told her what she was to swear to; she was told some questions that would be asked her; not many; the paper she had in her hand just now was a paper which had on it what she was to prove.


In chief, she says the paper was intended to assist her memory in case she should be frightened; her mother told her to tell the truth when she came over here.


Susannah Croft, a married daughter, was sworn for petitioner, but she testified nothing which falls within the range of inquiry in the case.


P. D. Vroom, for petitioner, cited 1 Haggards Eccl. Rep. 733; 2 Adams 27.


W. K. McDonald, contra.


THE CHANCELLOR. The proof falls far short of making out a case of desertion by the husband.  The prayer of the petition is denied.

Whether a desertion by leaving a wife and family in another state, and coming to reside in this state, the marriage not having taken place in this state, is within our legislative provisions on the subject of divorce, need not now be considered.