95 N.J. Eq. 558 | New York Court of Chancery | 1924
This is a jietition for divorce filed by the husband, to which the defendant answered and filed a counter-claim.
At the conclusion of the proofs I indicated to counsel that I did not see how I could grant the praj^er of the petitioner, because of the requirement of our statute that a desertion shall have existed for two years prior to the commencement of the suit.
The parties cohabited until some time in the month of July, 1920. The petitioner says the 5th and the defendant says about the middle or the 20th of the month. She was engaged in running a candy store in East Rutherford, and complained that she was receiving no assistance from him:
With this I cannot agree. It is said in Dan. Oh. Pr. & PI. (6th Am. ed. after describing the amending of a bill of complaint:
“But although it is the practice to call a bill thus altered an amended bill, the amendment is in fact esteemed but a continuation of the original bill, and as forming a part of it; but both the original and amended bill constitute but one record; so much so that where an original bill is fully answered and amendments are afterwards made, to which the defendant does not answer, the whole record may be taken, pro confesso, generally, and an order to take the bill pro oonfesso as to the amendments only will be irregular.”
To the same effect will be found the opinion in Equitable Life Assurance Society v. Laird, 24 N. J. Eq. 319, affirmed in 26 N. J. Eq. 531. Of course, it requires no argument that the effect of amending a petition is precisely the same as amending a bill.
Even were this not so, the argument made by counsel woul,d be of no avail to his client, because if the amendment were
Nor do I see how any relief can consistently be given to the defendant on her counter-claim. She has testified to a state of facts, slenderly, but perhaps sufficiently, corroborated, which would entitle her to a decree were it not that her husband’s desertion, assuming her story to be true, lacked the necessary quality of obstinacy. She testified that she was through with him, or had grown tired of him, or had had enough of him, or some such statement, and admitted that he had written her letters asking her to take him back, so that they might “start all over again.” This being so, the separation of these parties was quite as agreeable to her as it was to him, aird she certainly cannot now be heard to complain against it and ask the assistance of this court.
I will advise that both the petition and counter-claim be dismissed.