128 N.Y.S. 495 | N.Y. Sup. Ct. | 1910
The proofs conclusively establish that the defendant, without just or lawful cause, excluded his wife from their home in New Jersey, and I should have no hesitancy in decreeing separation were it not for the question of jurisdiction that arises under section 1763 of the Code of Civil Procedure. The facts bearing upon this feature of the case may be stated as follows: The parties | were married in 1888 in Paris, France. They became resi-1 dents of this State in 1885, and continued as such residents for nearly nineteen years. In 1904 they removed to the State of New Jersey, where they both continuously resided in a house purchased by the defendant until the fall of 19'OS when the plaintiff, after her exclusion from this house by the defendant, established her own separate domicile in the city of New York, where she has continuously resided since October, 1908. The defendant has maintained a continuous residence in New Jersey since 1904. Under the circumstances of this case plaintiff was within her legal rights in acquiring an independent and separate domicile. Hunt v. Hunt, 72 N. Y. 217, 242; Code Civ. Pro., § 1768. This action was commenced in November., 1909, by personal service within the State of New York of the summons and complaint -upon the defendant: Section 1763 of the Code provides in actions for a separation as follows: “ Such an action may be maintained in either of the following cases: 1. Where both parties are residents of the State when the action is eommenced. 2. Where the parties were married within the State and the plaintiff is a resident thereof when
Complaint dismissed.