PITNEY, Ch.

(Syllabus by the Court.)

Action by Theresa Metzler against Conrad Metzler for divorce. Amendment to petition allowed.

Julius Feldman, for petitioner.

PITNEY, Ch. The petition herein was filed March 12, 1907, for a divorce on the ground of desertion, under P. L. 1902, p. 502. Jurisdiction over the person of the defendant was acquired by the service upon him of process of citation, together with a copy of the petitioner's petition. He has filed no answer and entered no appearance. Proofs have been taken by the petitioner before a special master under an order of reference made for that purpose, and the cause is now brought on for hearing ex parte.

The petition is, I think, defective in two respects: First. Section 4 of the act of 1902 confers jurisdiction upon this court to grant a divorce for desertion, "provided the parties complainant and defendant or either of them shall have been resident in this state during two years of the time for which the desertion relied on for cause of divorce shall have continued and such residence shall have continued until the filing of the bill or petition." The petition herein states that the parties were married in Newark on August 16, 1890; "that after their said marriage your petitioner and her said husband resided in the city of Newark aforesaid, where your petitioner now resides;" that the parties lived together for about 15 years after their marriage, and until about December 29, 1904, when defendant deserted petitioner, and petitioner is informed that her husband now resides in the city of Newark. There is here no averment sufficiently showing a continuous residence of either party in this state during two years of the desertion and until the filing of the petition. The proofs show such residence on the part of the petitioner as to confer jurisdiction, but it is essential that the jurisdictional facts be set forth in the petition. Secondly. The petition charges in the simplest form that the defendant deserted the petitioner on the date above mentioned. To the common understanding this averment means that he physically abandoned her. The case made by the proofs and found by the master is that on the date referred to the petitioner left the defendant because of his long continued cruel treatment of her. A case of constructive desertion on the part ofthe husband is fairly made out; but in my view it is a different case from that averred in the petition. Section 7 of the act of 1902 (P. L. p. 504), like section 10 of the present act (P. L. 1907, p. 478), required that the petition should "plainly and fully" state the cause or "causes of the application for such divorce." In my opinion service of a copy of the petition herein upon the defendant did not plainly and fully convey notice to the defendant that he was called upon to answer a case of constructive desertion, and he was justified in supposing that his wife could not support with proofs the case that she averred in her petition. The divorce act admits of simple pleadings, but the petition should, I think, be couched in such phrase as to convey to a person of ordinary comprehension the accusation upon which the prayer for divorce is based. Smithkin v. Smithkin, 62 N. J. Eq. 161, 163, 49 Atl. 815, indicates the proper form of pleading where constructive desertion is to be relied upon. That case was followed by Foote v. Foote (N. J. Ch.) 61 Atl. 90, 93. The reversal of the decree in the latter case (65 Atl. 205) did not overthrow the decision of this court with respect to the proper mode of pleading a constructive desertion, for it proceeded on the ground that the case was one of actual, not of constructive, desertion.

In both the respects above indicated the petition herein is substantially defective. The defects, however, are such as may be cured by amendment, either under P. L. 1902, p. 506, § 15, or under the new act which took effect pending this suit (P. L. 1907, p. 480, § 19, and page 484, § 34). Petitioner may take an order permitting the filing of an amended petition, and, upon the filing of such petition, may have an order reciting the making of the master's report and the filing of the amended petition, and requiring the defendant to show cause at a future day (at least twenty days after service of the amended petition and order to show cause) why a decree should not be made against him for a constructive desertion in pursuance of the master's report.

If the amended petition and order to show cause cannot be served personally upon the defendant, there should be a new citation requiring the defendant to answer the amended petition and upon its return not served an order of publication will be necessary. This is the practice laid down in Blauvelt v. Blauvelt, 68 N. J. Eq. 59, 59 Atl. 567.