Hyperlawhypertext legal databasebeta Erwin v. Smaller 4 N.Y. Super. Ct. 340

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Erwin v. Smaller

4 N.Y. Super. Ct. 340 2 Sandf. 340 Court N.Y. Super. Ct. Decision date 1849-02-24 English

Contents

Majority

p. 340
Erwin v. Smaller.

Headnote

A wife cannot be compelled to appear and be examined as a witness in a suit against her husband.
The code of procedure allowing a party to call the adverse party as a witness, has not affected this principle, which proceeds not on the ground of interest in the suit, but on the ground of its leading to the interruption of domestic harmony and confidence.
Feb. 17;
Feb. 24, 1849.
Appeal from an assistant justice’s court, where Erwin sued Smaller for money lent to his wife. At the trial, Erwin called the wife of Smaller as a witness, who was objected to by S. as incompetent, and she refused to be sworn. • Erwin then moved to strike out S.’s defence. The justice decided that she could not be compelled to testify against her husband; denied the motion to strike out, and gave judgment in favor of Smaller.
J. H. Ehle, for the appellant,
cited the Code of Procedure, § 344, 347, 351.
G. Defandorf, for the respondent.

The only point in the case is, whether a wife can be compelled to appear and be examined as a witness against her husband. We are clear that husband and wife cannot be witnesses either for or against each other, on grounds of public policy appertaining to the domestic relations. The objection does not arise from interest in the event of the suit; but from the interruption which the allowance of such a practice would produce in the domestic harmony of the parties, and in that confidence which ought to exist in the marriage relation. The justice was clearly right, and the judgment must be affirmed.[1]

(a) (a) See Burrell v. Bull, 3 Sand. Ch. R. 15.