
    Prudence J. Stiles v. A. Judson Stiles.
    The mere fact that a husband, by frequent acts of,adultery, justified his wife «i leaving him, does not render him guilty of the statutory offence of desertion.
    On petition ex parte, for divorce for desertion.
   Pitney, Y. C.

This is an undefended divorce suit. The petition alleges ■desertion. The proofs show that while the parties were living together in the ordinary way the husband devoted himself to other females, but continued to reside with his wife and their child. His acts of adultery were known to the petitioner, and she remonstrated with him, and. upon his refusal to promise to give up his attentions to other women and to devote himself to her alone, she refused to live with him any longer and left him. The wife does, indeed, swear that for the last years that they lived together he did not provide her with sufficient food and clothing, but she does not give any details or state how the deficiency was made up, and it is quite plain from the whole case that the real cause of her separation from him was his attention to other women. The petitioner was entirely justified in leaving her husband, but it does not seem to me that the mere fact that a husband, by his acts of adultery, justifies his wife in leaving him, renders him guilty of the offence of desertion mentioned in the statute.

The case falls far short of any proof of such cruelty on the part of the husband as would justify the petitioner in leaving him, under the doctrine laid down in Mc Vickar v. Mc Vickar, 1 Dick. Ch. Rep. 490, and the cases there cited. The proof of adultery in this case is quite satisfactory, but it is not charged in the petition.

It seems to me that the prayer of the petition must be denied, and the petitioner be put to a new petition setting out the real .¡grounds of her complaint.  