Hicks v. Bradner

[363] By the Court. Miller, J. It is evident that the judge erred upon the trial in allowing the wife of t the plaintiff to he 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 case like the one at bar, as has been held in numerous adjudications of the court. Hasbrouck v. Vandervoort, 9 N. Y. 153; Smith v. Smith, 15 How. Pr. 165; Marsh v. Potter, 30 Barb. 506; Macondray v. Wardle, 26 Id. 612; White v. Stafford, 38 Id. 419; Carpenter v. White, 46 Id. 291; Rivenburgh v. Rivenburgh, 47 Id. 419. As this error of the judge was sufiicient 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. A majority of the judges concurred. Judgment affirmed, with costs.