Hicks v. Bradner

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

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 necessary to examine the other questions raised, and the judgment of the general term must be affirmed.

All concur..

Judgment affirmed.