KALISCH, J. The question growing out of [of abandoning the employment of the railroad the facts of this case is whether the plaintiff, company. And this does not appear from the who, being in the employ of the Pennsylvania evidence. But, on the contrary, it appears Railroad Company, having been arrested and that the plaintiff's arrest was caused by the convicted in a police court of Jersey City, railroad company, his employer, and it is upon a complaint alleging that he stole a therefore inconceivable upon what plausible pair of shoes from a car of his employer, ground it can be even argued that the plainand as a consequence of the accusation was tiff left his employment voluntarily. Accorddetained in jail six or seven days awaiting a ing to the appellant's theory, the plaintiff trial, can properly be charged with having would be chargeable with having voluntarily left his employer's service voluntarily, and left his employment, if during his service he thus be debarred from recovering the wage was arrested for an alleged offense committed increase provided by the defendant to be ef- upon a stranger, or was arrested upon civil fective from January 1, 1918. process at the suit of a third person, and being unable to give bail was locked up to await a trial and the disposition of his case.

From the evidence in the case it appears that the plaintiff had worked for the railroad company about seven years. This particular employment from January 1, 1918, to May 15, 1918, was that of a gang leader. He was paid 32 cents an hour, and he worked 12 hours a day, including Sundays.

By virtue of General Order No. 27, dated May 25, 1918, and Supplement No. 4, dated July 25, 1918, issued by defendant, Director General of Railroads, the plaintiff claimed in the court below the increase to 58 cents an hour as the wage to be paid according to the order.

We think that the question of the plaintiff's arrest, or even of his guilt or innocence, is wholly foreign to the situation presented here. The pertinent inquiry is: Did the plaintiff voluntarily leave his employment? Webster defines the word "voluntary":

"Acting without compulsion, or without being influenced by another; acting by choice or one's own accord or free will."

In the case sub judice, it became a question The provision of supplement No. 4 is as of fact for the trial judge to determine follows:

"The increase in wages and the rates established shall be effective as of January 1, 1918, and are to be paid according to the time served to all who were in the railroad service, or who have come into such service, and remained therein. A proper ratable amount shall also be paid to those who for any reason since January 1, 1918, have been dismissed from the service, but shall not be paid to those who left it voluntarily."

[1] The only point made and contended for by counsel of appellant in the court below and now here was, and is, that the plaintiff has disentitled himself to any of the increase of wages from January 1, 1918, to May 15, 1918, because the plaintiff on May 15, 1918, was arrested and locked up for an alleged theft of the goods of his employer, and that this in effect was a voluntary leaving by the plaintiff of his employment.

The general tenor of the argument urged upon us to sustain this contention is that to permit the plaintiff "to recover retroactive back pay granted by the sovereign power as a reward for loyal service after that employé has robbed his sovereign" would practically allow "the plaintiff to take advantage of his own wrong and to found a claim upon his own iniquity."

There is no pretense that the plaintiff did not render loyal and efficient service to his employer from January 1, 1918, to May 15, 1918, before he committed the alleged theft. The fact that he was arrested and locked up on a criminal charge was wholly without any significance, unless it was shown that the plaintiff created the situation for the purpose

whether the plaintiff left his employment
voluntarily, and the facts not only justified
the court in finding that the plaintiff did not,
but also that he was dismissed from the serv-
ice of the railroad company. A reference to
the order issued by the defendant shows that
the extra compensation was to be paid to an
employé "who for any reason since January
1, 1918," has been dismissed from the com-
pany's service. The term "for any reason"
is as broad in its scope as the general sense
of the term implies. A dismissal of an em-
ployé from employment for theft, or for in-
efficiency, or for any proper or improper
come clearly
ground of discharge, would
within the meaning of the term, and would
be no bar to a recovery of the back pay.

A careful examination of the evidence in the cause shows that there was proof of facts and circumstances which taken together were tantamount to a dismissal of the plaintiff from his employment by the railroad company.

[2] Before concluding, we think the plaintiff is entitled to have it stated that there was no competent proof in the case upon which the trial judge could have based a finding that the plaintiff was guilty of the alleged theft. The plaintiff denied guilt. After the case was rested, on part of plaintiff, the following colloquy took place between counsel:

"Mr. Gormley: I think it is consented that this man was arrested and convicted on the charge of petty larceny.

"Mr. Goldenhorn: We admit that, and we regret that we have not any method of appeal."

(107 A.)

[1] It is clearly within the jurisdiction of this court to entertain a bill to rescind ing for the purchase price, the injunction pend- and cancel a contract procured through coering final hearing will be restricted to prohibit- cion, misrepresentation, or any other frauduing trial of law action, in order that defend-lent means, and in such suit to enjoin proants may institute legal action and procure a favorable place upon the trial calendar.

ceeding at law for the enforcement of the contract, and also to award recovery of the money paid under and by reason of the fraudulent contract. The ancient jurisdiction of the Court of Chancery of England in this class of cases, as defined in 2 Pomeroy's Eq. Juris. § 912, obtains in this state. See, to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The re

that effect, Eggers v. Anderson, 63 N. J. Eq. be dismissed at final hearing. 264, 271, 49 Atl. 578, 55 L. R. A. 570. straint will accordingly be limited to the Whether the jurisdiction should be exercised, trial of an action at law pending final hearhowever, depends upon the circumstances of ing in this suit. the particular case. In this suit the circumstance that a successful defense at law to an action for the balance of the purchase price would afford but partial relief to complain- MATTHEWS v. MATTHEWS. (No. 45/96.) ant herein is alone a justification for reten- (Court of Chancery of New Jersey. June 17,

tion of the bill.

[2, 3] It accordingly remains to inquire whether the averments of the bill and supporting affidavits adequately establish a prima facie case of fraud.

The bill and the affidavit of complainant aver that the signature of complainant to the contract was procured through fraud on the part of defendants; but general averments of fraud may be disregarded unless facts are disclosed which reasonably establish the fraud alleged. The great disparity between the contract price and the real value, standing alone, would aid complainant little, even though it approaches proportions from which fraud is presumed, and representations as to value are ordinarily treated as mere matters of opinion. See Wise v. Fuller, 29 N. J. Eq. 257. But when the excessive purchase price and misrepresentations as to value are considered in connection with the additional facts already referred to, a situation is presented which in my judgment reasonably discloses fraudulent imposition. The contrast between two persons on equal footing negotiating the sale and purchase of a property and that of a vendor making sale in the circumstances stated in the bill is obvious. Assuming the averments of the bill to be true, it seems impossible to escape the conclusion that defendants not only brought about the emergent conditions which rendered it necessary for complainant to purchase a property in haste by reason of her distress, but also wrongfully took advantage of and misused for their own benefit the trust and confidence invited by them and reposed in them by complainant, and thus precluded the exercise of a free or intelligent or deliberate or voluntary judgment on the part of complainant, and in that manner secured for themselves a purchase price so far in excess of real value as to be in itself almost, if not quite, presumptive of

fraud.

I am convinced that this court should proceed to final hearing of the suit and restrain any trial at law in the interim.

1. DIVORCE
-CRUELTY.

1919.)

37(22)-GROUNDS-DESERTION

Though under the statute cruelty is ground

only for divorce a mensa et thoro, if such cruel-
ty compels injured spouse to separate and of-
fending spouse fails to make proper amends
during next two years, statutory desertion arises
by judicial construction and entitles injured
spouse to an absolute divorce.
2. DIVORCE

37(22)-GROUNDS-CONSTRUC

TIVE DESERTION.

To entitle wife to an absolute divorce on ground of constructive desertion, she must show that her husband's conduct not only warranted her in leaving him, but that it evinced a purpose to rid himself of her, or was so extreme as to compel her to leave him for her safety and protection.

3. DIVORCE ——127(3) — EVIDENCE-CORROBOBATION OF PETITIONER.

A divorce is never granted upon uncorroborated testimony of petitioner.

4. DIVORCE 127(4) - EVIDENCE-CORROBORATION OF PETITIONER-SUFFICIENCY.

Testimony of the mother and of a friend of petitioner to isolated occurrences between petitioner and her husband which were not the cause of the final separation is not sufficient corroboration of petitioner's testimony to entitle her to divorce.

7. DIVORCE 133(3) — SUFFICIENCY OF EVIDENCE-DESERTION.

forts at reconciliation, after his wife had left him because of his conduct toward her, held not to establish desertion entitling her to absolute divorce.

Evidence as to husband's conduct and ef

[4] But since at final hearing relief may be denied I see no reason why defendants should not, if so advised, institute a suit at law for the balance of the purchase price, and in that manner procure a favorable place upon the trial list of the law court to the Petition for divorce by Helen Clarke end that the action at law may be promptly Matthews against Clarence Dudley Mat tried in the event that the bill should thews. Petition dismissed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(107 A.)

Vredenburgh, Wall & Carey, and John A. Hartpence, all of Jersey City, for petitioner. Oscar B. Redrow, of Camden, for defendant.

relates to isolated occurrences that do not attest the petitioner's story of the causes that led to the final separation. Mrs. Spann simply verified the petitioner's version of what occurred on Decoration Day, 1910, as

hereafter related, and the mother gave testimony of the petitioner's physical appearance and mental condition, and that once

BACKES, V. C. [1] This petition is by the wife against her husband for divorce a vincula on the ground of desertion. They were married in 1904. The petitioner left her hus-upon a visit to her son-in-law at Christmas band a number of times and finally in March, 1913, because of his alleged extreme cruelty. The statutory remedy for extreme cruelty is a divorce a mensa et thoro. If, however, because of such cruelty the injured spouse separates from the offending spouse, and the latter fails to make proper amends for the period of two years next ensuing, the statutory offense of willful, continued and obstinate desertion arises by judicial construction and the relief is an absolute divorce.

[2] To entitle the petitioner to a divorce on the ground of constructive desertion, she must establish, not alone that her husband's conduct was such as to have warranted her in leaving him, but that it was of a character evincing a purpose on his part to rid himself of her, or that it was of such an extreme nature as to compel her to be rid of him for her safety and protection. Inconsiderate conduct of the husband may justify a wife's involuntary separation, and without more neither would be entitled to a divorce on the ground of desertion. Laing v. Laing, 21 N. J. Eq. 248. To convert a separation occasioned by misconduct after a lapse of two years of unrepentance into a statutory desertion, extreme cruelty must be established. The test is: Was the cruelty such as to have entitled the petitioner to a divorce a mensa et thoro at the time of the separation, and was the separation acquiesced in by the defendant for two years thereafter without sincere offer of reformation? Rogers v. Rogers, 81 N. J. Eq. 479, 86 Atl. 935, 46 L. R. A. (N. S.) 711.

I listened with careful attention for a day or more to the petitioner's tale of marital woe-not unmixed with happiness-and her recital far from satisfies me that her husband's treatment of her constitutes extreme cruelty according to the legal standards, flexible as they are in application.

[3] I would have been warranted in abruptly dismissing the suit because it rests in the main upon the unsupported testimony of the petitioner. It is the unvarying rule of this court never to grant a divorce upon the uncorroborated testimony of the petitioner. All of the authorities hold to this. Whether in a given case the testimony is corroborated within the meaning of the rule is sometimes debatable, but the principle itself has never been questioned.

[4] The testimony of the mother of the petitioner, and that of a friend, Mrs. Spann, 107 A.-31

she found things pleasant, and upon either
one or two other visits her son-in-law ap-
peared to have been drinking, and was
quarrelsome and treated the witness rudely,
one occasion when she
and especially on
went for a visit of a month he was ugly
toward her while in drink, cursed, and
threatened to strike her with a chair, and
that upon this occasion the two mothers-in-
law got into a common brawl; husband and
wife taking sides with their respective par-
ents. The witness made it quite plain that
her son-in-law was not very fond of her.
Whatever unbecoming conduct he was guilty
of was not, according to the witness, direct-
ed at his wife especially; he was ugly and
quarrelsome generally, and this naturally,
under the circumstances, caused great dis-
tress to the petitioner. That is all the so-
called "corroboration," and does not meet
the requirements.

[5] The defendant was in court and heard
all that his wife had to say about him, but
Whether he re-
failed to take the stand.
frained because of a sense of guilt, or out of
consideration for his wife, and a desire that
she obtain a divorce, I am unable to say;
but, judging from his recent actions, I am in-
clined to think that a divorce would not
have been unwelcome to him. I gather this
from his conduct after the separation. He
was profuse in his profession of a desire
to have his wife return to him, and even as
late as February, 1918, persuaded her to with-
draw her cross-petition for a divorce in this
court on the ground of desertion by holding
out to her prospects of a reconciliation, and
then abandoned further effort to that end,
when the suit was dismissed. Of this I will
speak later. The defendant's silence in open-
court, seems to me, cannot be regarded as
confirming the petitioner's testimony. In
Hague v. Hague, 85 N. J. Eq. 537, 96 Atl. 579,
the husband's testimony in support of his
wife's charge of desertion was considered by
the court of appeals, but I know of no au-
thority holding that his refusal to deny the
charges is corroboration. It was the de-
fendant's privilege to rest his defense upon
the case as made out by the petitioner, and
this was the attitude of his counsel who
argued for a dismissal for want of proof of
cruelty and lack of corroboration.

[6] However, I was not much influenced by the absence of corroborating testimony. The petition was dismissed chiefly on the ground that the petitioner's testimony, accepting it

as probative, did not make out a case of extreme cruelty, justifying the separation and its continuance, so as to entitle her to a divorce for desertion.

The petitioner is a refined, educated, and cultured lady, and highly sensitive. She gave her version of domestic unhappiness and discord with frankness and candor, not shirking her own responsibility for some of the friction; but withal I feel that some of it was not without unconscious exaggeration. The husband, too, is of her class and standing, and, when not in his cups or angry, bore himself gentlemanly toward his wife. That they were fond of each other, and that between sprees they were happy together, and that the wife still has affection for her husband, there can be no denying. But he would get drunk, every so often, she says, about once in four weeks of a Saturday night, and when in that condition he was offensive. He would vomit, soil the bedclothing, curse, not at her but at random, and especially repulsive was he to her at these times in the exercise of the marital rights. They were not excessive, but he would, as she says, maul her, and this she detested. It is not clear that he always did this when intoxicated, but at any rate he quit the practice in 1906.

They first went to live at Kenwood, a suburb of Camden; but, because of her delicate health and inability to keep house, lodgings were taken in Camden, where they had to leave because of his habits. In the spring of 1905, they went to an apartment house in Philadelphia, and thence to a boarding house where they lived until February, 1907, when she left him and was away a month.

Upon her return to her husband's apartment, they remained for a month, and then moved to Collingswood in this state, and thence to Ventnor for the summer. In the fall they returned to Philadelphia and stayed until March of 1908, when the petitioner again left. At that time, she says, he had a violent spell after drinking when he threatened to smash and break things, and that he threw things around; that he was fighting full, but that he did nothing to her, except, as usual when drunk, he used abusive and profane language, and she left after consulting a lawyer. She took a position as governess in New York, and, after an absence of five months, she was persuaded by her physician to return upon her husband's assurance that he would mend his ways.

After a short time spent in the hospital and a few months' visit to the defendant's mother's home, they again moved to Collingswood in the fall of 1908, where they lived until March, 1911, when she left again. There they lived in three rooms, light housekeeping, for a year and a half, and then they took a house. While living in the rooms at Collingswood, the petitioner says her husband was kind and good to her, that she be gan to feel that their married life would be harmonious, and that she finally persuaded him to furnish the house next door. She said things went along all right until the spring of 1911. Then they got bad again in two ways, viz., that her husband was drinking, and that his mother was then living with them, and had been since the fall previous. It does not appear that he was drinking heavily. The impression made by her testimony is that he was indulging but little, and that she found no fault on this account.

The real cause of the petitioner's discontent and interference. The petitioner experienced at that time was the mother-in-law's presence happiness when alone with her husband in the three rooms, but the house was not large enough for her and his mother. The motherin-law found fault with the way she kept house, and it was difficult for her to please both her husband and his mother, and in this respect, as she says:

The immediate cause for her leaving him at that time was, according to her story, that he and another boarder in the house laid in a case of beer which they set out to finish on a Saturday night. When she saw they were getting drunk, she left out of fear of a repetition of three past experiences that she had had during their then two years of married life. She went to her mother's in New York and then to a cousin's in the same city, and, after the lapse of a month, she returned to her home. Her husband followed her, "Things got worse and worse, and it was promptly and persistently and in a penitent hopeless. It was two against one, and I am mood, and, upon his promises not to drink not the kind that fights, and getting ill by it, so I lost my courage, I had to fight, and it was and not to approach her maritally when unvery objectionable. ** I simply thought der the influence of liquor, she went back; and it was hopeless and there was nothing to do but this latter promise she says he kept for many to eliminate myself, because both of them treatyears, and until shortly before she left him ed me as though I was a servant.” for the last time. He did not give up drinking. The periodicals continued thereafter through their cohabitation, not, however, to the same extent nor as often as before. Sometimes there would be an interval of four months and more. Once while drunk at, this house he flourished a revolver and set fire to a paper basket as a result of which she fainted.

*

It appears also that the mother-in-law was dissatisfied with living in the country, and was constantly urging her son to move back to the city. To this the petitioner seriously objected, because, as she says, she had been trying for many years to get a home, and “I wanted to remain in our little home." She said there was not any one particular thing