1 Keyes 250 | NY | 1864
The plaintiff was sworn as a witness in her own behalf; the defendant objecting to her examination, as the ease states, on the ground that the action being under the sheriff’s claim against the husband, it was substantially against him, and she could not be examined because her husband was so far interested in the case. The point of the objection is not clear, but if it has any meaning it is this, that the sheriff having taken and sold property under an execution against the plaintiff’s husband, an action to test the title to such property is one substantially against him, and in which he is interested, and the law forbids husband and wife to testify either for or against each other. ¡Regarding this as the substance of the objection there is no force in it.
The rule of the common law did not prohibit husband and wife from testifying in a civil action, unless one or the other, or both were parties, or directly interested in the subject of the action. Here the husband was not a party, nor had he any such interest as would have disqualified the wife by strict common law rules. The action was in no proper sense against him. He made no claim to the property taken and sold by the defendant, and had no interest in the litigation, unless, indeed, to have his debts paid from property to which he laid no claim. There was no conflict of interest between husband and wife; the latter claiming the property as her
The wife has been admitted to separate rights of property, and to separate rights of action, even as against the husband himself Interest in the event of the action is no longer a ground for excluding a witness, and the parties themselves may be witnesses in their own behalf, or witnesses in their own cause. Parties,'with certain exceptions, are placed upon the same footing and-subject to the same rules of examination as any other witnesses. There is no longer any reason for excluding husband and .wife as witnesses for or against each other on the ground of interest, for as parties to an action ■ they may be witnesses for themselves; and it was this ground of union of interest and privilege between husband and wife that mainly gave rise to the common law rule, excluding them from testifying for or against each other. Be this, however, as it may, the tendency and effect of legislation has been to abrogate- the common law ■ distinctions growing out of the marital relation in respect to the competency of witnesses; whether husband- or wife are parties to, or interested in an action, they may be examined in the same manner and subject to the same rules of examination as any other witness, except that they shall not be required to disclose any confidential communication made to each ■ other during marriage. ■ If husband and wife are parties to- an action,-the statute in terms makes them competent witnesses in their own - behalf, or in behalf of any other party, and subjects them to the same rules of examination as other witnesses, except protecting either -from a disclosure of ■communications made by one to the other. The exception is strongly indicative of the legislative intention to render husband'and wife, when parties, competent to testify as to all matters, other than communication made by the-husband to the wife, or the wife to the husband. In the- present case the action was brought by the wife for the conversion of her separate property. As the plaintiff, she could testify on her own behalf, and had the controversy been between -her husband and a third person in respect to the property; I
The property consisted of Brussels carpeting and oil paintings, and the testimony of the plaintiff, if credited, clearly established her title to it. Indeed, all the evidence as to ownership was on the part of the plaintiff, and her own statement was materially contradicted by disinterested witnesses. The defendant’s proof was mainly directed to an impeachment of the plaintiff and to lessening the value of the paintings. It appeared from her testimony in connection with the other ■witnesses that she was a native of Denmark, and lived with her parents until she was fourteen years of age. She then went to live with her aunt in Sweden, who was wealthy, and she was with the latter some six or seven years. Her aunt left her sick at Hamburg, in Germany, and went to Paris, and after her recovery she came to this country. She brought with her $1,000 in gold and nearly $2,000 worth of jewelry, given to her by her aunt, and also three paintings, “ The King and Queen of Denmark,” “The Sacrifice” and “The Aurora.” She was supported in the fact of gold, costly jewelry and paintings when, in 1853, she embarked for this country, by a lady who knew her at Hamburg. On her arrival at Hew York she put up at the Hotel Constane, and the bookkeeper of the establishment testified to having seen in her possession some $500 or $600 in gold, and also much valuable jewelry. She was married in September, 1854, to W. Wehrlcamp, who was a bookkeeper and a person without means, and neither at the time of marriage or since had been engaged in any business on his own account. Some three years after the marriage, the plaintiff and her husband went to Europe, but were absent but a short time. Seven of the paintings taken by the sheriff were purchased by the plaintiff from an English artist after her marriage, with her own means, and five small pieces she painted herself. She kept an account in her own name in the Bleeclcer street savings bank from March, 1855, to March, 1857, and while the account was running the teller testified that she spoke to
Many of the defendant’s exceptions occur in the cross-examination of the plaintiff. Several of them were palpably frivolous, requiring no notice, and were not insisted upon in the argument, nor are any on which a point was made at bar tenable. The fact to which our attention was directed arose in this way: The defendant’s counsel had got the witness to say that she recollected that a Mr. Carpenter had obtained a judgment against her husband. The question was then put to her, “ Do you recollect asking Mr. Carpenter to loan that money—the money for which the judgment was obtained and the property taken ? ” This was objected to and excluded. Two or three other questions of a similar character followed, varying only in phraseology, which were also excluded. She was then inquired of, “ Did you at any time say to Mr. Carpenter or in his presence that the paintings and carpets belonged to you and your husband and they will pay the debt ? ” This was allowed and answered. There was no error here. The questions excluded assumed facts not proved. There ivas nothing in the case to show that the property was taken to satisfy a judgment obtained by Carpenter against Wehrkamp for borrowed money. Free from this objection, and when the inquiry was put in form to throw light upon the issue whether she was the
The plaintiff testified that she at one time loaned some of her money to & Mr. Jacobs, a friend of her husband who' was then in New York; she did not know his Christian name. The defendant’s■ counsel then inquired, “Will' you ' ask■ your husb.and, who is here in court, what Jacobs’ 'first name was, and where he lived, so that I may ascertain who he is and where he lives ? The court, on objection excluded the question arresting Collogeny with the witness, and the defendant excepted. This was plainly right. It would have been the duty of the court in the orderly conduct of the trial, irrespective of any formal objection, to have arrested such a course .of examination. It was manifestly trifling with the dignity and wasting the time of the court by impertinent and irrelevant inquiries; unprofessional conduct' of counsel.
It seems that the action had been once tried and the plaintiff had obtained a verdict. A new trial was granted, as it was alleged by the defendant’s counsel, on the ground of newly discovered evidence. The plaintiff stated on her cross-examination on the present trial that she did not know the ground on which the new trial was granted and that she did not recollect of testifying on the first trial that she obtained credit from Doughty for one bill of carpeting because she had money in the savings bank, but .if she so testified she misunderstood the question. At the close of the defendant’s case his counsel offered to read the affidavits on which the motion ‘ for the new trial was made and in connection therewith to prove that they were served on the plaintiff’s attorney, and'that no affi
These are all the exceptions supposed on the argument to be entitled to any consideration. Indeed, none of them were strenously urged, except that allowing the plaintiff' to be examined as a witness on her own behalf.
The judgment of the Common Pleas should be affirmed.
All the judges concurring except Mullin', J., who was for reversal on the grounds stated in the following opinion.
Had the verdict of the jury been for a much less sum than for which it was rendered, I should feel much better satisfied that injustice had not been done to the defendant and those he represented. But the court below has not seen fit to disturb the verdict, and we cannot, 'if we would, interfere with it, notwithstanding it might be satisfied that it' was for much more than the plaintiff was entitled to recover. If the ruling on the trial was correct the judgment must stand, whatever errors may have been committed by the jury.
The first question presented for our consideration is, whether the plaintiff was a competent witness in her own behalf. The ground of the objection to her ■ is, that the defendant asserts title to the property in controversy through a judgment recovered against the plaintiff’s husband, and, therefore, the husband is substantially a party, and thg wife cannot, be examined as a witness against her husband. i;
At common law, neither the husband or the wife could be examined as a witness for or against each other, and this rule of exclusion was adopted because it was considered to be against public policy to compel persons occupying the relation of husband and wife to disclose the acts and sayings of
■ To this rule of exclusion there was but one exception, that neither might be a witness against the other in regard to personal injury done or threatened, and that the wife was a competent witness against the husband on the trial of an indictment for a forcible marriage, or for a conspiracy and fraudulent marriage. (2 Cow. & Hill’s notes, 1554.) In all civil matters they were wholly incompetent to testify for or against each other. (Id., 1554.)
The Code has changed the common law rules of evidence in many very important particulars, among others by making the wife a competent witness against her husband in actions in respect to her separate property. By the act for the more effectual protection of married women passed, April 7, 1848, a married women was permitted 'to take by gift, devise, or bequest from any person other than her husband, and hold to her sole' and separate use, convey, and devise, real and personal property in the same manner as if she were unmarried.
It was provided bysection 114 of the Code of Procedure, as it stood.when this action was commenced, that where a married woman is a party her husband must be joined with her, except that when the action concerns her separate property, she might sue alone.
Thus* by section 899 of the Code, it was provided that á party to an action or special proceeding may be examined in his own behalf, or in behalf of any other in the samemanner, and subject to the same rules of examination, as any other witnesses. The statute makes every party a competent witness—there is no exception, 'and the courts have no .power to create exceptions to the operations of statutes unless the exception is necessary to prevent injustice, so obvious with the intention of the legislature, that it should be excluded.
The case of a married woman owning separate estate is not a ease within any principle of exclusion. If it was wise and just that married women should have separate estates..
The decisions of the court have not been uniform on this question, yet I think the weight of authority in the Supreme Court is in favor of holding the wife a competent witness. (Shoemaker v. M'Kee 19 How. Pr., 86; Marsh v. Potter, 30 Barb., 506; Schaffner v. Renten, 37 Barb., 44.)
In this court there is no reported decision on the question, that I have been able to find. In March, 1863, the case of Marsh v. Potter, cited supra, was approved by this court, and thus settling the question as to the competency of the wife.
The court below were right, therefore, in admitting the plaintiff to testify in her own behalf.
Tiie plaintiff was asked by her counsel and by the court whether she was acquainted with the value of the pictures, and she replied, a little. She was then asked what was the value of “The Sacrifice,” one of the number. This question was objected to by the defendant’s counsel. The objection was overruled, and the defendant’s counsel excepted. The counsel did not specify in his objection the ground on which he desired to have it excluded, and the only ground he can now rest upon is that a' person a little acquainted with pictures, having painted some herself and bought others, was not competent to give an opinion as to value. It seems to me that she had shown herself competent to express an opinion upon the value, the weight that opinion was entitled to was for the jury. If the counsel had desired to have her capacity to form an opinion as to value further tested, he should have objected to allowing her to express an opinion until her competency was carefully shown. But he has contented himself with resting on the objection that on her evidence she was not shown capable of offering an opinion as to value, and as I have no doubt she was competent, his objection was properly overruled.
The plaintiff’s claim to a recovery rested on her exclusive ownership of the property seized and sold by the sheriff. She had sworn, on her direct examination, that she was the owner, as her own separate property, of the money with which the carpets and some of the paintings were paid for, and that the other paintings not purchased by her were given to her by her aunt.
It was competent for the defendant to contradict her as to the ownership of the property, either by her own evidence, or the evidence of others. If she had stated, before suit brought, when she had no intent to deny her exclusive ownership of the property, and when she was called on to speak the truth as to the ownership if she spoke at all, that the property was not her separate property but that of her' husband, or of her husband and herself jointly, it would have had a tendency to impair the' confidence of the jury in her whole evidence, and to establish affirmatively as against her, an ownership of the husband in the property.- This was precisely what an affirmative answer to the questions put to her would have proved, or have had a tendency to prove, and I confess I am unable to conjecture upon what ground the evidence was excluded. The court, however, did permit the counsel to inquire of the witness whether she at any time said to Carpenter, or in his presence, that the paintings and carpets belonged to her and her husband, and they ■ would pay the debt.
The question excluded limited the conversation to the time when Carpenter was applied to for the loan. The question
The witness Lowenburg testified on his direct examinathat he would value the picture called “ The Sacrifice ” at §500. On his cross-examination he was asked how much he would give for that picture. This question was objected to .and excluded, and the defendant’s counsel excepted. He was also asked whether he thought the picture could be sold for the price he had named. This question was also objected to and excluded.
It must be considered that what the witness would give for a picture, was no evidence of value; but the object of the inquiry was not to obtain an answer which would control the jury in the estimate of value, but to ascertain whether the estimate was not grossly unreasonable. It was a legitimate inquiry on cross-examination. So also as to the other question; the market value might not be a proper estimate of value, but it was a criterion by which the jury might test the accuracy of the opinion as to the value.
I think the question was'improperly overruled.
I am of opinion, however, ■ that for the rejection of the evidence above mentioned, the judgment of the court below should be reversed and a new trial ordered, costs to abide the event.
Judgment affirmed.