Mizorowsky v. Mizorowsky , 2 Buchanan 246 ( 1906 )

Garrison, V. C.

This is an undefended divorce suit. The petition is filed for an absolute divorce based upon the charge of desertion. The petition charges that the desertion took place in the month of June, 1900, at Odessa, Russia, when tire defendant informed the petitioner that she was tired of him, and went to live with her mother in that city.

The proofs show that the parties were married at Odessa in 1897 and lived together until December, 1900, that they had two children. The petitioner testifies that his wife was dissatisfied with the small earnings which he could make in his trade of silversmith in Bussia and advised his coming to this country; that he landed in this country in January of 1901; that previous to leaving Enssia his relations with his wife had been amicable, and that they were living together up to the time he left; that two days after he landed in New York he came to Jersey City and has since lived there; that he left with his wife the sum of $20; that after he obtained a position here (which he did almost immediately) he sent his wife every month from $15 to $25, and continued to do this until September, 1903. He testifies that in March of 1901 he wrote to her to get ready to come over, and that she replied that she did not then want to come, and requested him to send her some money, which he did, and continued sending her moneys as above stated. He does not produce any copies of any letters written by him, or the letters received by him from her, so that all of this testimony rests upon his uncorroborated word as to the contents of these written communications. He further testifies that in June of 1902 he sent her steamship tickets for herself and children, together with about $70 in money; that she kept the money but returned the tickets; that in September of 1903 his brother, who was coming to America, was commissioned by him to go to Odessa and bring petitioner’s wife with him, and for this purpose petitioner sent his brother $125. The brother went to the wife and endeavored to get her to come, but she refused. There is other evidence that at or about the time of this latter date she also refused to come with another person who also desired to have her come to America.

The petition, as above stated, charges desertion in June of 1900. There is absolutely no proof of this. The master finds a desertion as of March 1st, 1901. There is, in my opinion, no testimony to support this. There is certainly no uncorroborated testimony, and I do not think that the petitioner’s testimony itself can possibly be construed as showing any desertion as of March 1st, 1901.

The only periods when I think desertion has been proven are as of June, 1902, and September, 1903. The first date named is the time when he sent her the steamship tickets, and she returned them, or they were returned. If this was corroborated, that would undoubtedly show a desertion. But it is not corroborated by any testimony and rests upon his statement alone; and even if it be held that the other testimony in the case sufficiently substantiates his testimony with respect to this matter of the tickets, it does not aid the petitioner in this suit because his petition was filed on the 18th of February, 1904, and the statutory period of two years had not therefore elapsed at the time the suit was brought.

For the reason, therefore, that I do not find in this case any proof of willful, continued and obstinate desertion for two years prior to the filing of the petition, I will advise a decree dismissing the petition.