Rivenburgh v. Rivenburgh

47 Barb. 419, 1866 N.Y. App. Div. LEXIS 153

• Court: New York Supreme Court
• Decided: November 19, 1866
• Status: Published

Opinions

Boardman, J.

Was the defendant a competent witness in her own behalf?

Before the Code, neither husband nor wife were in general admissible as witnesses for or against each other. If either were a party the other could not be a witness. If both were parties, neither could be a witness. The reasons for this rule, founded on public policy, are well stated by Duer, J. in Hasbrouck v. Vandervoort, (4 Sandf. 596.)

How, the Code provides, in substance, that a party may be examined in the same manner as any other witness. By the term “any other witness,” must be understood, any other witness subject to the same disabilities, or standing in the same relations to the parties or the subject matter. It is not intended to remove existing disqualifications, or to make a person a witness because he is a party, who would otherwise be incompetent. The law says a felon shall not be a competent witness. If he becomes a party to an action does he become qualified by virtue of the Code ? Is the prior law repealed or annulled by the Code ? Or does the Code intend simply to say, “Whatever you might have testified to as a witness, not being a party, you may still testify to, though made a party to the action, but your. right to testify shall not be increased, extended or magnified by being a party, beyond what it was before you became a party.”

This seems to me fair and just. The legislature must have so intended. For since 1849, decisions have been made recognizing the above distinction, and the legislature has unifonnly refused to make husbands and wives witnesses, though the question has been repeatedly before them.

I may add that I think it better that some wrongs should be endured unredressed, rather than open the gates to domestic discord, distrust and animosity.

But I am not satisfied, from the evidence, that the defendant was guilty of adultery. Nor do I think the evidence was sufficient to satisfy the jury of that fact. It was barely sufficient to raise a suspicion, and not a violent one. I have discredited no one in coming to this conclusion, and have rejected no evidence in the case, except perhaps the evidence of Ehle in relation to the buttoning up of pants, very faintly sworn to by him, not seen by Boberts, and denied by Bentley. Upon this ground I think the order appealed from should be set aside and a new trial granted.

Parker and Masok, JJ. concurred in above views.