(concurring). All the statutory provisions relating to actions for divorce, separation or annulment of marriage specifically require a plaintiff to show jurisdictional facts, such as residence or marriage within the State, or the like.
Section 7-a of the Domestic Relations Law (as added by Laws of 1922, chap. 279), however, provides for dissolution of a marriage because of continued absence of a spouse for five years or more, without making any such requirement. Despite this omission, that section contemplates the existence of a matrimonial domicile within the State; that the res of the matrimonial status sought to be dissolved are within the State. If the statute be not so read, it would offend the Due Process of Law Clause of the United States Constitu*468tion, and a decree pursuant thereto would not be entitled to the benefit of the Full Faith and Credit Clause of the United States Constitution. (See U. S. Const. 14th Amendt. § 1; Id. art. 4, § 1.)
Here, though the allegations of fact are meagre, there is sufficient in the petition, for the purposes of the order sought herein, to sustain prima facie the view that the petitioner was deserted by her husband in Finland. That fact, if sustained by evidence, enabled her to claim that the res of the matrimonial status were possessed by her and could be carried into another jurisdiction. She may, therefore, claim in this case to have brought the res into New York State, of which State she alleges she is a resident. This fact would give jurisdiction to sustain the granting of an order of publication herein. This would leave open, however, the satisfying of the trial court upon the hearing that the res were in fact within the jurisdiction by reason of the wife having become possessed of them as a result of the fault of the husband in deserting her. If it should develop upon the evidence that the husband was not at fault, then the petitioner would be disabled from validly claiming she had brought the res into the State, since, if she be the one at fault, the res of the matrimonial status never would be possessed by her as against the husband. (Hunt v. Hunt, 72 N. Y. 217; Atherton v. Atherton, 181 U. S. 155; Haddock v. Haddock, 201 id. 562.)
Hagarty, J., concurs.
Order denying application for order of publication reversed upon the law, without costs, and motion granted.