Opinion
11-29-1902
HALL v. HALL.
Julius Lichtenstein, for petitioner. James F. Miuturn, for defendant.
Action for divorce by Howard L. Hall against Mary M. Hall. Decree for plaintiff advised.
Julius Lichtenstein, for petitioner.
James F. Miuturn, for defendant.
PITNEY, V. C. In this cause the petition was filed on or about January 23, 1901. An answer was filed in time, and the cause came on for trial before me on October 8, 1901, and was heard on that day, and also on October 31st; and I decided it, without opinion, in favor of the petitioner. An appeal having been taken, I have been furnished with a copy of the printed evidence, and been requested to give my reasons for the decree advised. I have carefully read the evidence as printed, and will now state as briefly as possible my reasons.
The petitioner, at the time of his marriage, was a deck hand on a tugboat belonging to the Erie Railway, under moderate wages,— about $30 a month,—with the expectation of promotion to the position of pilot or captain, with a much larger income, which he afterwards attained. The parties were married in September, 1894, and had two children,— girls. They lived together at various places, under various circumstances, until May 4, 1898,—a little less than three years before the petition was filed,—when they separated, the wife retaining the custody of the children; and never lived together afterwards. Some time after that separation—just when the case does not disclose with certainty—the wife proceeded against the husband in the recorder's court, and under an order of the recorder he paid her $20 a month for the support of herself and her children. The question in the cause is as to the character of the separation, and its continuance. Before the separation the parties were keeping house in a suite of rooms on the first floor of No. 114 Jefferson street, near the corner of Second street, in Hoboken, where they had been living for a year, and next door to the home of Mrs. Hall, the elder, the mother of the petitioner. Prior to that time they had been living in Monroe street, and before that had been living with the mother of the defendant. In the Jefferson street house they occupied four rooms, and had for a boarder a man named Farrell, who followed the same occupation as did the petitioner. They also had living with them a middle-aged lady by the name of Chamberlain, who had acted as a nurse for the defendant when she was ill, and then stayed as a sort of half-boarder, helping the defendant, and working out at times. Both the petitioner and Farrell were subjected to the necessity of working nights at times. Sometimes both worked at night, and sometimes both worked in the daytime; and sometimes one worked at night and theother in the daytime; and when the latter was the situation the one going to work in the morning would leave before the one returning from work in the morning would reach home. According to the evidence of both parties, they were not living happily. The petitioner swears that his wife was dissatisfied with the amount of money that he was able to give her for living, and was also dissatisfied with him personally. I may say here that there is nothing in the case to show that the petitioner was either unfaithful to his wife, or lacking in industry and economy, or that he did not furnish his wife with all the money that his wages afforded. The petitioner testifies that his wife became dissatisfied, and wished to give up housekeeping, and live with her mother, and that he should furnish her with $20 a month for spending money, which he declined, and then that she desired to move into better apartments, and that he was unwilling. He swears that on the night of the 4th of May, 1898, being at work at that time on day shift, he returned home, and found his rooms vacant, the furniture having all been removed. He learned by inquiry that his wife had moved into a suite of rooms just around the corner in Second street. He swears that he had no previous notice of her intention to move at that time. After considerable inquiry, he found her in her new rooms, and observed that she had some new furniture put in place, and had some conversation with her, which was not of a pleasant character, and left that evening, not intending to abandon his home, but because he was obliged to go to the tugboat to sleep in order to be ready to go out with the tug between 3 and 4 o'clock the next morning. The petitioner returned from his work the next night about half past 7, and went to his wife's new rooms, and found neither his wife nor his children, the rooms being locked up. He sought his wife, and was unable to find her. He states that he went to her house every night for several nights, and did not find her, but did finally meet her on the street four or five days after the moving; that he asked her to give him access to the house, but that she would not let him in the house, and refused to give him the keys for that purpose; that he went there on several occasions at different times between that and some time between the 15th and the 20th, never found his wife there, and always found the doors locked. On application to the proprietress, Mrs. Narr, he was refused by her permission to go to the rooms. On one occasion, some four or five days after the moving, it appears that he met his wife in a grocery store near by, and again requested access to the house, and somewhat by force searched her person for the key of the rooms, and was unable to find it, she telling him that she had left it in the possession of her father. All this is not denied by the wife, and she swears that she did not let him have the key because she was afraid he would go and break the furniture, which fear on her part I find to be wholly unfounded. Finally, later on, about the middle or latter part of the month, he went to the rooms, and found his wife and her mother, a Mrs. Muller, engaged in actually moving the crockery out of the house. He walked up the stairs, tried to enter the room, and the door was slammed and locked in his face, and he was ordered by Mrs. Narr, the proprietress, not to stay about there trying to get in, but to leave the premises, giving as a reason, as she now swears, that she did not want any disturbance in her house. That this occurrence took place is proven not only by the petitioner, but by Mrs. Narr, and is substantially admitted by Mrs. Muller, the mother of the defendant, called by the latter as a witness. The result was that the defendant succeeded in preventing the petitioner from going into her rooms, and at the end of about 15 days moved her furniture out and stored it, and went to live with her mother. At the time of the moving out of the rooms in Second street, the wife packed all her husband's clothing in a trunk, and left the trunk on the stoop of that house, and Mrs. Narr, the landlady of the house, sent word to the petitioner, and he had the trunk taken to his mother's house, where he appears to have lived during the whole of the separation. The wife swears that she sent the trunk around to his mother's house,—a significant circumstance. The petitioner did not seek, with any great persistence, to visit the defendant at her mother's, because she had discouraged him, telling him that she did not) want to live with him; that she had a man that suited her better, or words to that effect; and his mother-in-law was not friendly to him, and he was well satisfied, as he swears, and as I think the evidence shows, that his presence there was not desired. After a few months the mother-in-law, Mrs. Muller, and her husband, and the rest of the family, including the defendant, moved to rooms on the corner of Jefferson and Second streets, owned by the same landlady who owned the rooms the next door which had been occupied by the defendant for about a fortnight in the first half of the month of May. A short time after that the defendant took up her residence in a couple of rooms in the rear flat of the adjoining building, No. 502 Second street The two rooms which she occupied there at first were two of a suite of three on the first floor, and the other (front) room was occupied by the daughters of Mrs. Narr, Anna and Minnie Narr, who were the daughters of Mrs. Narr by her first marriage, and who took the name of her then present husband. Miss Anna Narr was afterwards married to a man by the name of Bahlburg. The proof is clear that for some time the petitioner went there frequently while she was living in those rooms, and supplied her with necessaries and money. She denies that he paid ber as much as he claims that he did, and she denies tosome extent the furnishing of provisions. She lived for several months in those two rooms, and later on moved, with the Narr girls, into rooms in the same building, several flights higher up. While living at this last place,—the precise time does not appear, —she procured from the municipal authorities of Hoboken the order for support by her husband before mentioned. She swears that while her husband visited her there at 502 Second street he frequently had sexual intercourse with her. This he denies, and I am satisfied that his denial is true. He evidently went there for the purpose of taking care of his children, and he testifies that he did make approaches toward cohabiting with his wife, but that she refused; and the evidence of Mrs. Narr and Miss Anna Narr, now Mrs. Bahlburg, is that the defendant was asked by them who this man was who came to see her, and she replied that it was her husband, and, asked whether she was going to live with him, she replied: "No. He wants to make up with me. I don't want to be bothered with him." This was said more than once. The petitioner swears that when he approached the subject of cohabitation the defendant positively refused, and said that she had a better man than he, to wit, Mr. Farrell. His language is: "She told me that Frank Farrell was a better man than I was every day in the week, and she didn't want to live with me, and wouldn't live with me." And he says that she told him that several times. And it is proven in the case that Farrell did visit her there for a short time with more or less frequency. And Mrs. Anna Narr-Bahlburg swore that on one occasion when Farrell visited her there she found them together in the defendant's room, with the door locked; and that while receiving these visits from Farrell she placed a dresser which she had against the door leading from the room of the Misses Narr to her room, and pulled down the shade of the window which looked out from the defendant's room to her mother's, telling the witness that somebody might see Farrell there. After a while the petitioner ceased entirely to visit her, and later on she left that house, owing, as I think the evidence warrants, to her behavior with a man named Peterson, presently to be mentioned,—her conduct being offensive to the landlady and her family,—and went to live with her mother.
As a motive for the defendant withdrawing herself from her husband's companionship, and as a reason why, for a short time only, the petitioner persisted in his efforts to resume cohabitation with her, evidence was given tending to show that she was willing to receive and did receive attentions from other men; and the defendant was given full opportunity to answer the evidence on that subject, and did attempt to answer it. Most of it was introduced by the petitioner on the first day of the hearing, and I was satisfied at the time, and am satisfied upon reading the evidence now, that no injustice was done to the defendant in that respect, because, as before observed, she was given full opportunity to meet the evidence, and did attempt to meet it. That evidence divided itself into two groups: First, on an undue familiarity with the boarder Farrell while they were living at 114 Jefferson street, and before the alleged desertion on the 4th of May, 1898, and at different places. Mrs. Chamberlain, the nurse, says that she frequently saw the defendant go into Farrell's bedroom, and be in there with him, with the door shut; and she swears that she heard the defendant say that she would take Frank Farrell, and go to keeping house with him; that she could do as well; and that her husband could go to hell; and that on two or more occasions when she (the witness) had been sleeping at night with the elder Mrs, Hall at No. 112 Jefferson street, she, in the morning, sought entrance into No. 114, the residence of the petitioner; that the petitioner, who was at that time working on day shift, had left for work, and that Farrell, who was working on night shift, had returned for his day's sleep; that the doors of the apartment were locked for some time, and after they were opened she found Farrell and the defendant together in the apartments with the small children. And on one occasion the elder Mrs. Hall, who was enabled from her apartments to look across the air shaft into the apartments of the defendant, saw Farrell and the defendant in her room together under circumstances that showed great familiarity between them. Farrell denies any improper intercourse, but admits that he was home on the 4th of May, 1898. the day the defendant moved, and assisted her in moving around to 502 Second street, and that he stayed there two nights. It is also proved that Farrell visited the defendant several months afterwards, when she moved the second time, as we have already seen, into 502 Second street, and spent the evening with her. He says he went to pay her arrearages of board which be owed her, and she testifies to the same thing. There was enough in this evidence, which undoubtedly came to the petitioner's ears, taken in connection with her expressions of aversion to him personally, and her preference for Farrell, to make him cautious how he resumed cohabitation with her. The other group of evidence applies to a man named Peterson, who made the defendant's acquaintance under these circumstances: In 502 Second street, Mrs. Narr, the propriefress of that house, had a parlor somewhere on one of the upper floors, and had a New Year's reception there in 1899. On that occasion the defendant and the two daughters of Mrs. Narr, Anna and Minnie, were present, receiving company, and a Mr. Bahlburg, who afterwards married Miss Anna Narr. and Mr. Peterson, were guests. Mr. Bahlburg seems to have fallenin love with Miss Anna, and paid her constant attention thereafter, until they were married during the next month. After this New Year's reception Mr. Peterson took up visiting at the house. The proof is clear that he always visited the defendant in her kitchen, which was at once the only sitting room she had, and there often saw the Misses Anna and Minnie Narr. Bahlburg also visited there, and did his courting, so to speak, in Mrs. Hall's kitchen. Mrs. Bahlburg swears that on one occasion on entering the kitchen she found the defendant sitting on Peterson's lap, and on another occasion that Peterson was sitting on the defendant's lap. As to one occasion she is corroborated by Mr. Bahlburg. Peterson made several visits there,—not less than four, admitted by him and by the defendant. He also went out with the defendant,—went to some entertainment with her in New York City, at night,—and met her on several occasions outside of the house. In accounting for this the defendant swears that Peterson did not come to see her, but came to see Miss Minnie Narr. This the latter denies point blank. Then the defendant called Peterson to give his version of the affair, and he swore that he did not go there to visit any female, but did go on the express invitation of Bahlburg, by appointment, to meet him on the several evenings in question at Mrs. Hall's kitchen. That story, on the face of it, is ridiculous, namely, that Mr. Bahlburg, who was courting a young lady in that house, should invite a gentleman friend to meet him on a particular evening in Mrs. Hall's kitchen, for a friendly visit between the two. Mr. Bahlburg, called by the petitioner, swears that there is not one word of truth in it; that he never made any appointment with Mr. Peterson to meet him there; that the witness' whole business there was to court Miss Narr; and this is quite consistent with the probabilities of the case. Another piece of evidence as a part of that group is this: Miss Anna Narr swears that one evening, after Mrs. Hall and the two Misses Narr had moved into a suite of rooms higher up in the building, she was sitting in Mrs. Hall's kitchen, and Mr. Peterson was visiting Mrs. Hall; that one of the children was asleep, and the other was wakeful, and she (the witness) was trying to put her to sleep, and that Mrs. Hall and Peterson went into the hall together; that they were gone some time, and that the witness, after rocking the child to sleep, fell asleep in the rocking chair, and, waking about 11 p. m., put the child in its bed, and retired to her own bed in the adjoining room, but could not go to sleep; that she lay awake until about 2 o'clock, when Mrs. Hall came running into her room in excitement, and said that old Mr. Narr had caught her and Peterson in the hall. The defendant and Peterson deny this, but old Mr. Narr, who worked on the American Line steamer docks, and at certain times was obliged to work nights, was put on the stand, and swore that he came home that night at 2 o'clock; that he opened the outside hall door, and found something pushing against it; that he was the stronger party, and pushed the door open, and crowded a man and woman into a corner of the vestibule; that it was quite dark, and, in order to be sure of the identity of the man, took him out into the light of the street lamp, and recognized the man as Peterson. He also recognized Mrs. Hall, and spoke to her. It is also proven in the case that the defendant had in her possession the photograph of Mr. Peterson. I find that both the defendant and Peterson have falsified in the matter of the alleged intimacy between them, and that the evidence of Anna and Minnie Narr, and their mother, Mrs. Narr, and her husband, Mr. Narr, is accurate and reliable. And it is proper to say here that my impres sion was at the time—and that impression is thoroughly supported by a re-reading of the evidence—that the evidence generally of the petitioner and his witnesses, to wit, his moth er, Mrs. Chamberlain, and the Narrs, and Mr. Bahlburg, is in the main reliable, while that of the defendant herself and her mother and Mr. Peterson is unreliable.
One or two other matters may be worth noticing. A Mr. Muller, a young man, brother of the defendant, called by her, swore that some time during the separation he attempted to have an interview with the petitioner for the purpose of getting the parties together again. He swears that he called on the petitioner where he was living with his mother, at 112 Jefferson street, in the evening, and talked some with him, and then made an appointment to meet him outside the house on the next morning, and that he went there the next morning, and that the petitioner did not appear. And an argument was drawn from that that the petitioner was unwilling to meet half way in an effort to resume cohabitation. This witness does not say that be was authorized by his sister to open negotiations, but apparently was acting on his own responsibility. The proof on the part of the petitioner is this: That he had been working on night shift, and was sleeping in the afternoon or evening in his mother's house, and young Mr. Muller called there; that petitioner's mother waked petitioner up and got him out of bed; that he saw Mr. Muller, and that he was unable to ascertain from him what he really wanted, and finally made an appointment with him for the next morning; and that he was prevented from keeping that appointment by being detained on board his tug. Another small piece of evidence is this: Some time in the latter part of May, 1900, a few months before the petition was filed, the petitioner received from his wife a letter of a very affectionate and loving nature, asking him to resume cohabitation. She was atwork at a pencil factory, and he knew her route to and from home, and intercepted her on her way home some three or four nights after, and spoke to her. He states that she replied that she was all right now; that she had a new remedy; that she didn't care whether he came back or not; that his impression was that she had got in the family way, and had written the letter with a desire for a renewal of cohabitation, but had been able to be relieved of her condition; and that he was led to believe that from the fact that his wife was running around with Farrell, as he had heard.
The only possible question upon this state of facts that can arise is whether the petitioner was sufficiently earnest and persevering in his attempt to induce his wife to live with him; and 1 am of the opinion that he was. I think he discharged his whole duty. In the first place, her renting new rooms, and moving into them, and locking him out of those rooms after she had moved into them, show a deliberate act on her part, evidently the result of a settled determination. And this differentiates the situation from that of a woman who, in a freak, resulting from a quarrel, leaves her husband without premeditation; and it is to this last class of cases that the rule applies that the husband should go after his wife, and ask her to return to his home. But it is proper to remark that, in my opinion, every case must be judged by its own peculiar circumstances. In this case it seems to me that the husband did everything that a husband could be expected to do in order to renew cohabitation with his wife. In the next place, he had good cause to suspect the chastity of his wife. I believe that all of his testimony is mainly true, and especially that part in which he states that she declared that Farrell was a better man than he every day in the week, etc. And then we have her intimacy with Peterson, and her repeated declarations to Mrs. Narr and Mrs. Bahlburg that she did not want to have anything to do with her husband. In my opinion, a woman who deserts her husband, whether as the result of a sudden freak or deliberately, must, in order to entitle herself to the benefit of the rule that the husband must seek his wife, and endeavor to induce her to return, be careful to comport herself during her separation in such a manner as not to give her husband just cause to suspect her chastity. With regard to the writing of the love letter in May, 1900, that was two years after her desertion, and after the petitioner's right to a divorce on the ground of desertion had matured and become vested; and I believe that the petitioner's theory of her motive in writing the letter is the right one. At any rate, I believe his account of his interview with her as the result of that letter.
For these reasons I advised the decree of divorce.