Carpenter v. White

46 Barb. 291, 1866 N.Y. App. Div. LEXIS 54

• Court: New York Supreme Court
• Decided: July 10, 1866
• Status: Published

Opinion

By the Court, Balcom, J.

If the plaintiff had obtained a divorce from his wife for adultery with the defendant, or for adultery with any other man, she would have been a competent witness for him to prove the criminal intercourse of the defendant with her alleged in the complaint. (Ratcliff v. Wales, 1 Hill, 63. Chamberlain v. The People, 23 N. Y. Rep. 85.) But he had not procured a divorce from her, and she was not a party to the action, and was therefore incompetent to testify as a witness to any fact in the case. She was properly rejected as a witness for the plaintiff, in accordance with the well settled rule of the common law that prevents husband and wife from being witnesses for each other. (See Hasbrouck v. Vandervoort, 5 Seld. 153.)

The Code of Procedure does not apply to the case, for the reason that the wife is not a party to it; and it is unnecessary to determine when husband and wife may be witnesses for or against each other in actions under the Code, to which both are parties.

The plaintiff’s counsel has argued that the wife of the plaintiff was a competent witness for him to prove the alleged criminal intercourse of the defendant with her, because it was a secret fact which no one but she and the defendant knew. He has cited 1 Greenleaf on Evidence, § 344, to support his argument. But the answer to it is, that evidence by the wife of the plaintiff that the defendant had the alleged criminal intercourse with her was not necessary for her protection. The action was brought for the exclusive benefit of the husband,, and it is unlike the case mentioned by Green-leaf, in the section cited, in which the community had an interest as well as the husband. That was a case or proceeding in which it Was claimed that the wife was the toother of a bastard child, atid that the father of the child should be compelled to support it; and she was held to be a competent witness to prove her criminal connection With the alleged father of the child, though her husband was interested in the event.

[Broome General Term, July 10, 1866.

There is no base that holds the husband may call his wife as a witness to prove any secret fact, not known to atiy other person, in aii action brought by him for his own benefit to which she is not a party. What the rule is under the Code in an action between husband and wife, or where they are both parties on one side, need not be mentioned; And it is unnecessary to say when husband and wife toay be witnesses against each other from particular necessity. But see'l Green-leaf on Evidence, § 343, as to the rule on this question. They can not be witnesses for each other, from particular necessity, according to any rule of the common law, nor under the Code, when only one is a party to the action.

My conclusion is that the rulings of the judge, rejecting the wife of the plaintiff as a witness for him for any purpose, were correct, and that the plaintiff’s motion for a new trial should be denied, with costs.

So decided.

Farher, Mason, JDakom and Hoard-man, Justices.]