Woods v. Gledhill — 31 N.Y. St. Rep. 103

Majority

p. 103

Henry Woods, App’lt, v. Henry Gledhill, Resp’t.

(Supreme Court, General Term, First Department,

Filed March 28, 1890.)

Headnote

Cbiminal conversation—Plaintiff competent to testify in his own behalf—Code Civ. Pbo„ § 831, does not apply.

The plaintiff in an action of criminal conversation is not disqualified by § 831 of the Code from testifying in his own behalf.

Appeal from judgment dismissing complaint.

Purdy & McLaughlin (W. IT. Paid, of counsel,) for app’lt; De Lancey Nicoll, for resp’t.

The action was to recover damages for seducing and debauching the plaintiff’s wife. He was sworn as a witness to establish his right to maintain the suit, and the court held him to be incompetent to prove any fact tending to establish the misconduct alleged as the ground of the action. But by the provisions-contained in § 828 of the Code of Civ. Pro. it has been enacted that a person shall not be excluded from being a witness by reason of his interest in the event of the action, or because he was a party thereto, or the husband or. wifeof a party, except as otherwise prescribed in the same title. . The effect of this section is to make the party competent,'4unless by some other special provision that competency has been denied to him. The only provision supposed to have this effect is that contained in the first part of § 831 of this Code By that it has been declared that “ a husband or wife is not competent to testify against the other upon the trial of an action, or the hearing upon the merits of a special proceeding founded upon allegation of adultery, except to prove the maraiagc¡” or disprove the allegation of adultery. But the plaintiff was not

p. 104

offered as a witness to give evidence against his wife, but his evidence was proposed to be given against -the defendant in the action. ^ It is true that it may have the effect of implicating her in the misconduct, but as the action was not against her, but against ■ another person, the evidence proposed to be elicited would be against him, and him alone. The ease, accordingly, was not within this prohibition of § 831 of the Code; and the same point has been disposed of in this manner by the general term of the second department Smith v. O’Brien, 24 N. Y. State Rep., 708.

The judgment should be reversed, and a new trial ordered, with costs to the plaintiff to abide the event.

Yan Brunt, P. J., and Brady, J., concur.