Jayne, Colie and Grimshaw. The opinion of the court was delivered by Jayne, J.A.D.
[20 NJSuper Page 504] The question of paramount interest in the consideration of the present appeal is whether a judgment nisi entered in a divorce action in which the complaint alleges simple desertion can, on appeal, be sustained on the attribution of a constructive desertion.
The situation may be succinctly stated. The parties were married on December 23, 1928. Two children were born of the marriage. In August, 1935, the plaintiff-wife departed from the home taking her two children with her. The following month she instituted in the Court of Chancery a suit against her husband, the defendant here, for a decree of divorce on the ground of extreme cruelty. The suit was tried and resulted in a decree of dismissal on January 22, 1937. The parties have never resumed cohabitation since the departure of the plaintiff in 1935.
The present action was instituted in 1950 in this court, in which the plaintiff alleges that "Louis S. Cohen, the defendant, deserted the plaintiff in the month of April 1938. Ever since which time, and for more than two years last past, he has willfully, continuously and obstinately deserted her." No facts whatever are pleaded which would establish a constructive desertion.
The following quotation taken from the opinion of the advisory master accurately summarizes the testimony introduced on behalf of the plaintiff:
"During 1938 the plaintiff was living with her children at the home of her mother. At that time the mother was suffering with diabetes and was in extreme pain. This was disturbing to the children and prevented them from getting their needed rest. As a result of this, the plaintiff again asked the defendant to take her and the children back into his home and he ejected the children and the plaintiff from his home. Because of the conduct of the defendant and in order to give them their required rest, the plaintiff was required to put the children into an orphanage in Paterson where they remained until 1943. After that time the children returned to live with the plaintiff. This is substantially the testimony of the plaintiff.
The plaintiff was corroborated as to her desire to return to the defendant by the two children of the marriage, who testified to being present when the plaintiff asked the defendant to take her and the children back and the defendant refused."
One of the children who was born in 1930 supplied at the hearing in July, 1951, the following account of the occurrence in April, 1938, upon which the cause of action is primarily based:
"Q. Will you tell the judge what your best recollection is as to what occurred that night? A. Well, we had walked into the hall of the Carroll Street address.
Q. By 'we' you mean you, your mother and your sister? A. I, my mother and my sister. I remember my mother knocked on the door or something of that order; anyway my mother said something to the order of 'Please let us stay here, we want to be back, we want to live together, the children are sick; and I remember he grabbed her, I don't remember by the arms or some place; there was an ice box in the hall, and I was standing more or less facing the door and was looking in at him, this way (indicating), and he picked up an empty milk bottle as much as to throw it at my mother, which caused my sister and me to run out of his home and go to my grandmother's house."
"Q. What did he say? A. He told me to get out. I told him what our condition was, and he took the three of ...