
    Prosper S. Hewes, App’lt, v. Annie K. Hewes, Resp't
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 16, 1891.)
    
    Divorce—Separation—Residence.
    The residence spoken of in § 1763 of the Code is an actual residence of each of the parties, and not the theoretic residence of the wife, which is presumed to follow that of the husband. It is the parties who must he residents of the state to entitle either of them to maintain an action for separation.
    Appeal from judgment entered on report of referee dismissing complaint
    
      Anson Beebe Stewart, for app’lt; Chas. M. Hough, for resp’t
   Ingraham, J.

To entitle the plaintiff to a judgment for a separation, he must bring his case within § 1763 of the Code.

In this case the parties to this action were married in the state of Pennsylvania, and the defendant has never actually resided within the state.

The plaintiff, however, claims that, as the domicil of the wife follows that of the husband, the residence of the plaintiff within this state made the wife also a resident.

It is clear, however, that the residence spoken of in the section of the Code cited is an actual residence of each of the parties, and not the theoretic residence of the wife which is presumed to follow that of the husband. The language used is in the plural. It is the parties that must be residents of the state to entitle either of them to maintain the action, and the authorities sustain this view.

In Mellen v. Mellen, 10 Abb. N. C., 331, Rumsey, J., says: Where the husband brings his action to dissolve the marriage contract, the theoretic identity of person and interest cease, and the legal fiction of the one domicil no longer operated. The rights of the parties and the jurisdiction of the court must there stand upon the actual existing fact as it was,” and he is sustained by the authorities cited in his opinion. This construction is given to the section of the Code cited in Ramsden v. Ramsden, 28 Hun, 285; Toosey v. Toosey, 14 Daly, 537; 16 N. Y. State Rep., 1021.

We think, therefore, that the plaintiff failed to bring the case within the section of the Code cited, and that the disposition of the case by the referree was correct.

It follows that the judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.  