| New York Court of Chancery | May 15, 1872
The circumstances under which the defendant left the petitioner and has continued away, do not, in my opinion, make her absence the willful, continued, and obstinate desertion intended by the statute. He did much to provoke her going away, though his conduct did not altogether justify it. He has done nothing since to induce her to overlook or forgive his coiiduct, which provoked her to. leave, or made any attempt to induce her to return, but has acted as a husband would act who wished his wife to stay away for the three years
On the occasion of her leaving, lie returned home at an unseasonable hour of the night, and woke her up from sleep to admit him; it was, perhaps, her duty as a wife to have got up instantly and to have admitted him with that appearance of cheerfulness which many feign and few feel. But his conduct in resenting her tardiness and discontent by threatening to chastise their infant of a year old, because, when thus waked up, it made some noise, as every child would do, was brutal. She very properly snatched up her child to protect it, and also fell into a passion, it may have been too violent, but some passion was unavoidable. Instead of endeavoring to soothe and quiet her, he left the room. She was living with him in the house with his father, mother, and brother, away from her own relatives, and althoitgh his mother tried to pacify her, yet when she naturally spoke of returning to her father’s house as a refuge from this treatment, her husband, instead of calming hei’, liarslily bid her to look to the consequences of the step she was taking.
Ho sent her away in this mood at midnight, with a hired man, to her father’s house, three miles distant. He has never been to her since to seek for reconciliation or ask her to return. He has met her a number of times without speaking to her. Her temper may he too quick and too violent, but it was his duty to go to her after leaving under these circumstances, and see if some contrition, some concession on his part, could not do away with the effect of his harsh conduct on that night. Her threat, in the anger of the moment, never to live with him and to obtain a divorce, are not sufficient excuse for not making the attempt. He has acted as if anxious to convert a small quarrel between him and his wife, in which he was both much and most to blame, into a legal ground for divorce. He has not made the advances or concessions which a just man ought to have made, to put an end to this desertion. Eor want of this, a desertion which was willful and continued, cannot be adjudged obstinate.
The divorce must be refused.