49 N.Y. 510, Southwick v. Southwick

Citation:49 N.Y. 510
Party Name:LOUISE C. SOUTHWICK, Appellant, v. GEORGE W. SOUTHWICK, Respondent.
Case Date:May 28, 1872
Court:New York Court of Appeals

Page 510

49 N.Y. 510




New York Court of Appeal

May 28, 1872

Argued May 24, 1872.


Elbridge T. Gerry for the appellant. Defendant was not competent as a witness in his own behalf. ( Logendyke v. Logendyke, 44 Barb., 366; Cover v. Brook, 21 Id., 546; Dickerman v. Abrahams, 21 Id., 541; Bass v. Bean, 16 Howard, 93;

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Yale v. Dederer, 18 N.Y. 265; 22 Id., 450; Freethy v. Freethy, 42 Barb., 369; Gould v. Gould, 39 How., 441; Arborgast v. Arborgast, 8 Id., 297; Smith v. Smith, 15 Id., 165; R. Ins. Co. v. Noble, 5 Abb. N. S., 355.) The statute of 1867 did not affect existing suits. ( Trist v. Cabenas, 18 Abb., 143; Hackley v. Sprague, 10 Wend., 116; Dash v. Van Kleeck, 7 J. R., 486; Snyder v. Snyder, 3 Barb., 623; Bates v. Stearns, 23 Wend., 482.) The act has no retroactive effect so as to admit marital conversations had before it took effect. ( Dash v. Van Kleeck, 7 J. R., 477; Sandford v. Bennett, 24 N.Y. ; Ratcliffe v. Wales, 1 Hill., 63.) If the act controls pending proceedings it is an ex post facto law and void under the Constitution of the United States. ( People v. Humphreys, 7 Johns., 314; Gahagan v. The People, 1 Parker Cr. R., 384; Clayton v. Wardell, 4 N.Y. R., 230; 1 Greenleaf Ev., § 339; 1 Hale P. C., 693; 1 East. P. C., 469; 1 Russell on Crimes, 218; 3 Greenleaf on Ev., § 206; Calder v. Bull, 3 Dallas, 389; Cumming v. State of Mo., 4 Wal., 326.)

William Henry Arnoux for the respondent. Defendant was a competent witness. ( Minier v. Minier, 4 Alb. Law J., 317.) The legislature has authority to enact a new rule in regard to evidence, and that does not affect vested rights. ( Neass v. Mercer, 14 Barb., 318, 322.)


1st. The first question made in this case is, whether the defendant was properly admitted as a witness in his own behalf and against the plaintiff, his wife.

It is claimed that the provisions of the act of 1867 (2d Laws of 1867, p. 2221), do not enable the defendant to become a witness against his wife in an action in which they are the only and antagonistic parties.

I have reached the opposite conclusion. It must be conceded that the object of the enactment was to alter the common-law rule which forbade the husband or wife being a witness for or against the other. Its object was to make available

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in the trial of issues the evidence of classes of witnesses whom the rules of the common law excluded. It designated these classes as "the husband of any party to the action," and as "the wife of any party to the action." It declared that all persons falling within these designations should be competent and compellable to give evidence, "the same as any other witness." It declared further, that they should be thus competent and compellable "on behalf of any party to the action." It is conceded that where the husband or the wife is a party to the action, and the other is not, that the husband or the wife, as the case may be, is within the language of the statute. But it is contended that this language does not disclose an intention that he or she may be a witness for or against the other, when both are parties to the action, antagonists in it.

I am at a loss to perceive where the language halts or suffers a change in its meaning, in going toward one purpose more than toward the other.

If the wife sues the husband, or vice versa, she is, and he is, in the language of the act, "any party thereto."She is, in the language of the act, "the wife of any party thereto." He is, in the language of the act, "the husband of any party thereto." And what other are the new classes of witnesses created by the statute, than the wives of parties to the action, and the husbands of parties to the action? And on whose behalf is it that these new classes of witnesses are competent and compellable to give evidence the same as any other witness, if not "on behalf of any party to such action?" Does not the husband, plaintiff or defendant, suing or sued by a wife, defendant or plaintiff, fall directly within a class of the witnesses newly privileged and designated by this statute? And is not a husband, plaintiff or defendant in such action, directly within the description of the one in whose behalf the husband or the wife of a party may be a witness? He is a party to an action in which a wife is the opposing party.

Certainly the letter of the law is met by the facts, and the facts are met and embraced by the letter of the law. Nor is any violence done to the letter of the law in applying it to a

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case of husband and wife, parties against each other in an action.

I am well aware that as much might be said of the provisions of sections 398, 399 of the Code of Procedure. There the phrases, "no person offered as a witness," or "as a witness in any action" * * *...

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