3 N.J. Misc. 576 | New York Court of Chancery | 1925
Petitioner sues for absolute divorce, alleging two causes — -■ desertion and extreme cruelty. His proofs show to my entire satisfaction that the wife accused him of undue intimacy with another married woman; that there was no basis whatsover, in fact, for such accusations; that she was guilty of such a course of conduct toward him as amounted to extreme cruelty for more than the six months statutory period, injuring his health and rendering it unsafe for him to remain with her, so that though she, in fact, left him, he yas under no duty to seek her return; that she remained awaj' for more than the statutory two years, with no indication of desire or willingness to return, or to change her conduct if she did return, but, on the contrary, persisting in her accusations during her absence.
At the hearing I took the view that where the proofs show that such mental condition is so highly possible an explanation of, or cause for, her conduct, as in the present case, the husband has not sustained the burden of proof upon him, if he fails to present evidence to negative that possibility; none such lias been introduced.
That point had not been considered by counsel in their preparation for trial and argument, and, on application, a re-argument was granted, the result of which leads me to the conclusion that under the authorities in this state the husband is entitled to a decree. Omitting from consideration the questions of the presumption of sanity — that insanity is an affirmative defense which must he pleaded, and was not in this case, and that as an affirmative defense the burden of proof thereof is on the defendant, it seems to have been definitely determined by the court of errors and appeals in Smith v. Smith, 40 N. J. Eq. 566 (at p. 601), that extreme cruelty is ground for relief, notwithstanding it arises from delusion, at any rate so long as the defendant be not insane generally. There is in the present ease nothing to show that defendant is insane generally. The Smith Case was a suit by the wife against the husband for divorce from bed and board, but I am not able to observe that any difference in principle is neeos
The allowances as to costs and counsel fee heretofore announced will be undisturbed.