Rogers v. Rogers

1 Daly 194

• Court: New York Court of Common Pleas
• Decided: March 15, 1862
• Status: Published

Opinion

By the Court.

Hilton, J.

This judgment must he reversed, for two reasons. 1st. The defendant fully established his defence of prior adjudication;and 2d. The Justice erred in permitting the wife of the plaintiff to he examined as a witness upon the trial.

It was conclusively shown that the claim here sued on was interposed by way of set off, in defence to a former action brought before the same Justice between the same parties, except that they occupied the opposite position of plaintiff and defendant, and in which the Justice gave judgment for the defendant here, but the plaintiff in that action, rejecting and disallowing the set-off.

The reason for the rejection does not appear either in the return in that case nor in this, hut appellant’s counsel suggests, that it was because the bill appeared to be on its face due and owing to the plaintiff in this action, as “ agentbut however this may have been, it cannot be regarded by us on appeal. The evidence in the former case showed that the set off was actually due to the party as principal, and the only ground for its disallowance then would seem from the return to be, that the Justice gave greater credit to the testimony of the plaintiff in that suit, in opposition to the claim by way of set off, than he did to that of the defendant in support of it.

But apart from this, a fatal objection to the judgment con-sists in the admission of .the wife of the plaintiff as a witness upon the trial. The law has not changed the former rule which prevented a husband or wife being examined as a witness, either for or against each other, except in cases where they are parties to the suit. Barton v. Gledhill, 12 Abbott, 246; Hasbrouck v. Vandervoort, 5 Seld. 153. This rule was not founded upon the ground of a pecuniary interest in the event of the suit, and therefore is not obviated by sec. 398 of the Code, which declares that no person offered as a witness shall he excluded by reason of his interest in the event of the action, but rests upon the nature of the marriage relation and the disabilities it imposes, and owes its origin to principles of public policy. Here the wife was not a party to the suit, and therefore was not a competent witness, either for or against her husband, and should have been excluded. Code, sec. 399.

Judgment reversed.