Legal Opinion · Dissent

Rivenburgh v. Rivenburgh

New York Supreme Court

Decided November 19, 1866Published

THIS was an action for a divorce, on the ground of adultery. Feigned issues were awarded, and tried by a jury, who found that the .defendant had been guilty of adultery, as charged in the complaint. The defendant was offered as a witness on her own behalf, and rejected. The defendant made a motion, on a case and exceptions, at the Madison special term, in June, 1866, for a new trial, which -motion was denied.

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THIS was an action for a divorce, on the ground of adultery. Feigned issues were awarded, and tried by a jury, who found that the .defendant had been guilty of adultery, as charged in the complaint. The defendant was offered as a witness on her own behalf, and rejected. The defendant made a motion, on a case and exceptions, at the Madison special term, in June, 1866, for a new trial, which -motion was denied. The defendant appealed from the order denying the motion, on the ground of her rejection as a witness, and also on the ground that the evidence did not warrant the verdict.

1Dissent

Balcom, J. (dissenting.)

The defendant offered herself, at the trial, as a witness in her own behalf. She was objected to by the plaintiff, and excluded by the judge. An exception was taken to the ruling of the judge, excluding her as a witness.

The Court of Appeals decided, in Hasbrouck v. Vandervoort, (5 Seld. 153,) that a husband can not be a witness for or against the trustee of his wife’s separate estate, in an action between the trustee and a third person, in relation to the trust estate. The principle on which that decision is founded excludes the wife from being a witness for or against…

2Cases cited6 opinions

  1. Chamberlain v. . the PeopleNew York Court of Appeals · 1861
  2. Pillow v. BushnellNew York Supreme Court · 1849
  3. Craig v. Rochester City & Brighton Rail RoadNew York Supreme Court · 1863
  4. Keator v. DimmickNew York Supreme Court · 1865
  5. Williams v. . the PeopleNew York Court of Appeals · 1865

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