The ground upon which the present proceeding was instituted for the dissolution of said marriage was that the petitioner’s wife had absented herself for five years, and that the petitioner had made diligent search to ascertain her whereabouts and to discover evidence that his said wife was living, and that no such evidence had been found. An order was made upon the petition for the publication of notice upon the wife, pursuant to section 7-a of the Domestic Relations Law. The matter was sent to an official referee to determine and report the facts and his conclusion thereon to the court. The learned official referee made his decision wherein he found and decided that the petitioner is a resident of the State of New York and had resided here for upwards of one year prior to the commencement of this action; that the petitioner and his wife, Helen Frances Heilweil, were married on March 24, 1920, in the city, county and State of New York; that from March 24, 1920, to September 3, 1922, they had been living together as husband and wife at their residence 108 West Sixty-ninth street; that there was no issue of said marriage; that on or about September 3, 1922, the petitioner came home, found his trunk ransacked, his personal belongings taken, and also a note written by respondent, saying: “ I am gone. No need to look for me.” The referee further found that subsequently the petitioner received a letter from his wife without any address, except the post-mark, Detroit, Mich., as follows:
“ Dear Billy:
“ Just a line to let you know that I’m O. K. as I promised, but think it best that this should be the last. You may think that what I did seemed mean, but we were both unhappy and you will soon forget me, brace up, give yourself plenty of work, hope you feel better.
“ HELEN.”
The referee further found as follows:
“ (7) That petitioner has made diligent and frequent efforts to discover evidence of whether respondent is now alive or whether she has been known to be alive during the time since her disappearance, by making inquiries at her former place of residence and of *616mutual friends, but there is no sufficient evidence, in view of the respondent’s deliberate desertion of her husband to warrant the conclusion that she is dead. (See Matter of Entenman, 122 Misc. 441; Matter of Parrinello, opinion of Newburger, J., Official Referee, New York Law Journal, June 13, 1930.)”
As conclusion of law the learned official referee decided that the petitioner was not entitled to a final order dissolving his marriage to Helen Frances Heilweil, respondent, pursuant to section 7-a of the Domestic Relations Law, and dismissed the petition. The court at Special Term thereupon made the order appealed from dismissing the proceeding on the merits, without costs.
The petitioner, appellant, asks reversal of the order appealed from, and that an order be entered dissolving the marriage existing between the parties. Under the provisions of section 7-a of the Domestic Relations Law it is provided that if the court “ after a hearing and proof taken, is satisfied of the truth of all the allegations contained in the petition, it may make an order dissolving such marriage.” The report of the learned referee very clearly shows that the referee was not convinced that the petitioner had made sufficient efforts to discover evidence as to whether the respondent was then alive, or whether she had been known to be alive during the time since her disappearance, and that there was no sufficient evidence, in view of respondent’s deliberate desertion of her husband, to warrant the conclusion that she was dead. It is urged by appellant that the death of the wife need not necessarily be shown, and that under the statute generally known as the “ Enoch Arden Law ” it is sufficient to show the absence of five years or more and diligent but unsuccessful efforts of the petitioner to locate his spouse. I do not think such interpretation of the statute is correct. The statute itself is based upon the assumption that the spouse who has disappeared is dead, and the absence of five years or more is to be taken as evidence of her death. It goes without saying that unless petitioner’s wife was actually dead he had no right to the dissolution of their marriage in this proceeding. In a very well-considered opinion by Mr. Justice Mullan in Matter of Entenman (122 Misc. 441), cited by the learned official referee in his report, a dissolution was denied under very similar circumstances to those presented in the case at bar. In that case the wife, as here, left home leaving a letter addressed to the petitioner stating that she was going away to work for herself and to find peace by going to work for herself, and stating that the wife would be better off by herself because she was never coming back, and that petitioner need not look for her. Under such circumstances, as here, it was held that the leaving by the wife was *617not an indication of her death, but rather of her desire to live separate and apart from her husband. The case of Frankish v. Frankish (206 App. Div. 301), a decision of this court wherein Mr. Justice Martin wrote for the court, was discussed by Justice Mullan. In that case, among other things, Mr. Justice Martin stated (at p. 302), with reference to the circumstances under which the defendant departed, that he left “ * * * by stealth and trickery, took the children [of the marriage of the parties] from the possession and home of plaintiff's mother and departed with them to parts unknown." Justice Mullan stated in his opinion in the Entenman case (at p. 442), referring to the proof upon which the petitioner relied: “That proof might seem to permit the implication, not that the disappearing husband had died, but that he was concealing his whereabouts so as to be free from the molestation of his wife, and thus be able to retain the custody of the children. In that respect the facts there seem to lead, almost as clearly as do the facts here, to the conclusion that the disappearing spouse was purposely keeping in hiding. It is, of course, obvious that the stronger the ground is for such a belief, the weaker must be the ground for a belief that the absent spouse has died. Except, therefore, for ceertain very significant language in the opinion in the Frankish case, I should feel compelled to hold that in the case of an absence of five years proof of an unsuccessful diligent search would alone require the granting of the dissolution prayer, wholly regardless of the age or physical condition of the disappearing spouse or of the reason or cause of the disappearance. Mr. Justice Martin, however, called attention to and seemed to stress the fact that the plaintiff wife in the Frankish case (p. 303) ‘ had no quarrel with defendant and * * * there was no reason for his deserting her.' That expression would appear unmistakably to indicate that the statute cannot be availed of in the case of a disappearance and continued absence due to intentional desertion, unless there are also present facts constituting a real, in contradistinction to a merely artificial ground for a belief that the life of the disappearing spouse had actually come to an end. That that is the correct view would seem to follow from what I believe to be the quite apparent fact that it was not the legislative intent so to change our matrimonial laws as to permit our courts to render judgments that would in practical effect be decrees of divorce upon the ground of desertion. In the instant case there can be no room for doubt that the disappearing wife did intend to leave her husband forever and did intend permanently to conceal herself from him. I find, therefore, that the petitioner’s proofs did not warrant a belief that his wife is dead, and that those proofs, on the contrary, *618tend strongly to support a belief that she is not dead. Petition dismissed.”
Such was the view entertained by the learned official referee in the proceeding at bar. That the learned referee did not believe that the petitioner had made sufficient diligent search for his absent spouse clearly appears from the refusal of the learned referee to specifically find that there was evidence to warrant the petitioner’s conclusion that she was dead. The learned referee refused to find the petitioner’s proposed finding of fact No. 8, as follows:
“ 8. That petitioner has made due and sufficient inquiry and search in an effort to obtain information as to the whereabouts of his said wife as to whether she be living or dead, and that he has found no evidence that she is now alive. That petitioner believes his said wife, the respondent, to be dead.”
In short, the learned official referee, a jurist of acknowledged probity and long judicial experience, accustomed to the weighing of testimony, and who saw and heard the petitioner testify, refused to find that the petitioner had made “ sufficient inquiry and search in an effort to obtain information as to the whereabouts of his said wife as to whether she be living or dead,” and refused to find that there was under the evidence ground for the professed belief of the petitioner that his wife was dead.
What the petitioner is really seeking in this proceeding is to divorce his wife and to permit his remarriage, by reason of the wife’s desertion and abandonment of the petitioner. I do not think that it was the intent of the Legislature to permit the dissolution of a marriage upon such grounds. What the Legislature did intend was to provide that absence for five years under circumstances sufficient to warrant the honest belief that the absent spouse was dead would justify a judicial dissolution of the marriage. The official referee has refused to find that the circumstances here presented justified the conclusion that the absent spouse was dead or that the petitioner believed her to be dead. I think such refusal to find as requested by the petitioner was amply justified under the evidence.
The facts and circumstances as shown by the testimony in this case are more indicative that the petitioner’s wife is still living and has absented herself because of marital disagreements between herself and the petitioner, and that she is purposely keeping herself in hiding, than that she is dead, and that, therefore, there is nothing to justify the petitioner’s claim that he believes his wife to be dead. Section 7-a expressly provides, in order to obtain the reh'ef which he seeks, that the petitioner believes his wife to be dead. Unless the evidence justifies such belief, the petitioner is *619not entitled to a dissolution of the marriage. In Pitcairn v. Pitcairn (119 Misc. 37) the petitioner applied for the dissolution of the marriage with his wife “ on the ground of absence for five successive years last past.” After setting forth the marriage of the parties and the defendant’s absence for five years, the petitioner then stated: “ That petitioner has made every effort within his power to ascertain the whereabouts of his wife and has failed in his every endeavor and believes that his said wife is dead; and that a diligent search has been made to discover evidence showing that said wife is living, and that no such evidence has been found.” In the course of his opinion denying petitioner’s application for an order of publication under section 7-a of the Domestic Relations Law, Mr. Justice Marsh, construing the statute in question, stated (at the bottom of p. 38): “ The ground of the proceeding seems not to be absence for five years, but a presumption of death resulting from unexplained absence.” I think such interpretation must be held to be the reasonable and rational one. In my opinion the official referee was entirely justified in recommending that the petition be dismissed.
The order appealed from should be affirmed.
O’Malley, J., concurs.
Order reversed and relief prayed for granted. Settle order on notice.