142 N.Y.S. 748 | N.Y. App. Div. | 1913
The plaintiff was married to Jean M. Purdy September 1, 1883, in the city of Corry, State of Pennsylvania. Thereafter they removed to the State of New York, where they resided
The cases in this State have been summarized in Haddock v. Haddock (201 U. S. 562) and the general proposition seems to have been incontrovertibly established since that time. In Ransom v. Ransom (54 Mise. Rep. 410) the plaintiff in the divorce action had been driven from her husband’s home by reason of his misconduct, and she and her children became in good faith residents of the State of Virginia. Of that State she had been an actual resident for more than two years, when she obtained within that State, and pursuant to its laws, a judgment of absolute divorce upon the ground of the defendant’s adultery. The service of process in that action was by publication, and the defendant neither appeared nor answered therein. It was there proved that the defendant had actual knowledge of the issuance of the decree, and had procured a copy thereof before his time to intervene and have the default opened had expired. More than four years thereafter the plaintiff married in the State of Virginia, and despite the fact that she had been the innocent party throughout, that her residence in Virginia was taken up as a matter of necessity and in good faith, because she had
I believe, however, that this verdict, if it really represents the deliberate action of the jury which rendered it, is excessive in view of all the circumstances of the case. Having in mind the fact that plaintiff had voluntarily abandoned his wife eight years before her attempted marriage with the defendant, had never contributed to her support, had never sought a reconciliation with her, and had left her and her children to shift for themselves as best they could, no foundation has been established for any such amount of recovery, particularly as defendant is not shown to have been in any way responsible either for the original separation or its continuance, with both of which plaintiff solely is chargeable. Nominal damages are defined as “a trifling sum awarded to a plaintiff in an action where
‘ The judgment and order appealed from will, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
Olabke, Scott and Hotchkiss, JJ., concurred; Ingraham, P. J., concurred in result.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.