
    May Williams, Resp’t, v. Cornelius Williams, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 1, 1891.)
    
    1. Husband and wife—Action fob sepabation—“ Desebtion.”
    Desertion, as used in the law of divorce, contemplates a voluntary separation of one party from the other without justification, with the intention, of not returning.
    2. Same.
    The parties were married in New York, and in less than a year defendant gave up his house and refused to permit the plaintiff to live with him, unless she absolutely gave up all intercourse with her mother. The condition was never withdrawn, and under it she refused to live with him, hut offered to return to him if. he would permit her occasionally to visit her mother. EM, that under these circumstances defendant never had a cause of action in this state against the plaintiff for desertion; it was merely a temporary separation of the parties because of a disagreement, and on plaintiff’s offer to return unconditionally, defendant was without legal excuse in refusing to receive her.
    3. Same—Status of foreign divorce.
    A divorce granted by the courts of another state without service upon or , personal appearance by the defendant merely establishes the status of the parties to it within the state in which it is rendered.
    
    4. Same—Evidence.
    The decree granted in Minnesota being void, was properly excluded upon the trial of this action. It could not be considered as having any effect upon the status of the plaintiff.
    Appeal from a judgment of the general term of the first judicial department, affirming a judgment of the special term.
    This action was brought to obtain a judgment separating the parties from bed and board forever, and was based upon an allegation that the defendant had abandoned the plaintiff in August, 1882, and refused to permit her to return to him.
    The defendant denied the allegation of abandonment, and alleged that the plaintiff had abandoned him in 1880. He further set up in his defense a judgment of divorce in his favor from the plaintiff rendered in the district court of Ramsay county, in the state of Minnesota, in January, 1884, which court was alleged to be a court of general jurisdiction under the laws of that state.
    The parties were married in this state in 1879, and the defendant resided here until August, 1882, when he removed to Minnesota. The plaintiff continued to reside in Hew York, and was at the commencement of this action a resident of this state. The summons and complaint in the Minnesota action were personally delivered to her while temporarily stopping in Philadelphia.
    The j udgment roll in the Minnesota action was offered in evidence iipon the trial and excluded.
    The court found as a fact that the defendant abandoned the plaintiff in August, 1882, and gave judgment in accordance with the prayer of the complaint.
    Further facts appear in the opinion.
    
      Frank H. Platt, for app’lt; Austen G. Fox, for resp’t.
    
      
       Affirming 25 St. Rep., 183.
    
   Brown, J.

The chief ground upon which the appellant asks a reversal of the judgment in this action is that the court erred in refusing to find, as a conclusion of law, that the plaintiff had abandoned him two years prior to his leaving this state and taking up his residence in Minnesota.

The evidence is substantially undisputed that the defendant refused to permit the plaintiff to live with him unless she absolutely gave up all intercourse with her mother.

The parties were married in June, 1879, and lived together in a house in Fifty-ninth street in Hew York until the latter part of April, 1880, when the lease thereof expired. When preparing to remove from this house the defendant’s command to his wife was, “ When you leave this house you are not to see your mother. * * * You shall not go where she is, you will have no communication with her, you shall not write to her, have no communication with her whatever. If you want to see your mother you cannot go with me." The condition thus imposed upon the plaintiff was never withdrawn, and under it she refused to live with the defendant.

The cause for this disagreement is not disclosed in the record, but the evidence amply justified the conclusion that the plaintiff was always willing to live with the defendant if-he would permit her occasionally to visit her mother, and before he left the state she offered unconditionally and in good faith to return to him, and this he refused to permit her to do, but left New York and took up his residence in Minnesota, where he procured a decree of divorce against her.

Under these circumstances it is clear that the defendant never had a cause of action in this state against the plaintiff for desertion. That term as used in the law of divorce contemplates a voluntary separation of one party from the other without justification, with the intention of not returning.

It could not he said in this case that the plaintiff's act in leaving her husband was voluntary. It was coerced by a harsh and unnatural condition, and she was at no time unwilling to return and live with him as his wife if that condition was withdrawn.

The evidence discloses nothing more than a temporary separation of the parties because of a disagreement. There was no desertion by either party, and neither, up to the time of the husband’s refusal to receive the plaintiff in the summer of 1882, had a cause of action against the other.

But upon the plaintiff’s offer to return unconditionally the defendant was without legal excuse in refusing to receive her. It is also claimed that it was error to refuse to admit in evidence the record of the Minnesota decree, and upon this point it is claimed that the rule heretofore prevailing in this state with reference to judgments of divorce rendered in other states against residents of this state where there was no personal service of process within the state rendering the decree and no personal appearance by the defendant in the action, has been changed by recent decisions of the supreme court of the United States.

In support of this claim we are referred by the appellant to Maynard v. Hill, 125 U. S., 190, and Cheely v. Clayton, 110 id., 701.

The latter case turned upon the construction of the statutes of the territory of Colorado relating to the service of a summons upon a non-resident, and following the decision of the highest court of the territory the supreme court held the service in the case before it defective and the decree void.

Maynard v. Hill was an action in equity to charge the defendants as trustees of certain lands in Washington territory and to compel a conveyance thereof to the plaintiffs.

The case involved the legality of a legislative divorce granted by the legislature of the territory of Oregon, but the consideration of this question was by the facts of the case confined wholly to the territory within which the decree was granted. Neither case questioned the rule prevailing in this state, and the decree in Maynard v. Hill goes no further than that a divorce granted without service upon or personal appearance of the defendant establishes the status of the parties to it within the state in which it is rendered. It does not overrule the decisions of this state, but is in harmony with them, as it has never been denied by our courts that a state may adjudge the status of its citizens towards a nonresident, and that so long as the operation of the judgment is kept within its own confines, other states must acquiesce. People v. Baker, 76 N. Y., 78-84.

This subject Lad very full and careful consideration in the case cited, which was an extreme one, and until it is squarely overruled by a court of ultimate authority, must and will be regarded as settling the law in this state. O'Dea v. O'Dea, 101 N. Y., 23 ; Jones v. Jones, 108 id., 415—424; 13 St. Rep., 838; De Meli v. De Meli, 120 N. Y., 485-495 ; 31 St. Rep., 704.

It is also claimed by the defendant that the Minnesota decree should have been admitted in evidence for the purpose of limiting the effect.of the judgment in this state. This argument is based upon the anticipation that the plaintiff may seek to enforce the judgment for alimony in the jurisdiction where the defendant resides, and is based upon the fact that the plaintiff had actual notice of the pendency of the Minnesota action.

The argument is fully answered in the cases of O'Dea v. O'Dea and Jones v. Jones, supra.

In the former case it appeared that the process of the Ohio court was actually delivered to the defendant, and she had notice of and was personally present at the taking of depositions on the part of the plaintiff in Toronto. This court held, however, that the Ohio court acquired no jurisdiction over her person and that the decree was void.

In Jones v. Jones, a decree of divorce granted in Texas, where service was made out of the state, was held valid on the sole ground that defendant appeared in the action and submitted herself to the jurisdiction of the court, but it was said in that case that “ the marriage relation is not a res within the state of the party invoking the jurisdiction of a court to dissolve it, so as to authorize the court to bind the absent party, a citizen of another jurisdiction, by substituted service or actual notice of the proceedings given without the jurisdiction of the court where the proceeding is pending.”

The decree granted in Minnesota being void, was properly excluded. It could not be considered as having any effect upon the status of the plaintiff.

Being -legally the wife of the defendant within this state, she must be considered as legally entitled to all the rights flowing from that relation under the constitution and laws of the state and of the United States, and if the result be to compel defendant in the jurisdiction where he now resides to comply with our decree, that is a right to which she is entitled under the constitution of the United States, and the courts of this state have no power to deny it to her.

The judgment must be affirmed.

Judgment affirmed, with costs.

All concur, except YajsTN, J., not voting.  