Hicks v. Bradner

New York Court of Appeals

Hicks v. Bradner

35 How. Pr. 118, 5 Trans. App. 239

DecidedJanuary 15, 1868

StatusPublished

This text of 35 How. Pr. 118 (Hicks v. Bradner) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hicks v. Bradner, 35 How. Pr. 118, 5 Trans. App. 239 (N.Y. 1868).

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Opinion

Miller, J.

It is evident that the judge erred upon the trial in allowing the wife of the plaintiff to. be sworn as a witness and to testify against her husband. At common law the husband and wife could not be witnesses for or against each other,, and this-rule of the common law is not changed by the provisions of the Code which abrogate the disqualification of witnesses by reason of their being parties. These provisions, as they existed when this action was tried, have no application to a ease like the one at bar, as has been held in numerous adjudications of the court. (Hasbrouck agt. Vandervoort, 5 Seld. 153; Smith agt. Smith, 15 How. 165 ; Marsh agt. Potter, 30 Barb. 506; Macondray agt. Wadle, 26 Barb. 612; White agt. Stafford, 38 Barb. 419; Carpenter agt. White, 46 Barb. 291; Rivenburgh agt. Rivenburgh, 47 Barb, 419.) As this error of the judge was sufficient to authorize the general term to grant a new trial, it is not [119]*119necessary to examine the other questions raised, and the judgment of the general term must be affirmed.

All concur..

Judgment affirmed.

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Miller, J.

It is evident that the judge erred upon the trial in allowing the wife of the plaintiff to. be sworn as a witness and to testify against her husband. At common law the husband and wife could not be witnesses for or against each other,, and this-rule of the common law is not changed by the provisions of the Code which abrogate the disqualification of witnesses by reason of their being parties. These provisions, as they existed when this action was tried, have no application to a ease like the one at bar, as has been held in numerous adjudications of the court. (Hasbrouck agt. Vandervoort, 5 Seld. 153; Smith agt. Smith, 15 How. 165 ; Marsh agt. Potter, 30 Barb. 506; Macondray agt. Wadle, 26 Barb. 612; White agt. Stafford, 38 Barb. 419; Carpenter agt. White, 46 Barb. 291; Rivenburgh agt. Rivenburgh, 47 Barb, 419.) As this error of the judge was sufficient to authorize the general term to grant a new trial, it is not [119]*119necessary to examine the other questions raised, and the judgment of the general term must be affirmed.

All concur..

Judgment affirmed.

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Bluebook (online)

35 How. Pr. 118, 5 Trans. App. 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-bradner-ny-1868.

Opinion

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