Smith v. Smith
New York Supreme Court
Action for divorce on account of the adultery of the defendant. The defendant did not appear, and the action was referred to a referee to take proof of the facts stated in the complaint, and to report his opinion thereon. The referee reported his opinion, that the material facts are true, &c., and also the evidence taken by him. The only witness to prove the entire case was the plaintiff.
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Action for divorce on account of the adultery of the defendant. The defendant did not appear, and the action was referred to a referee to take proof of the facts stated in the complaint, and to report his opinion thereon. The referee reported his opinion, that the material facts are true, &c., and also the evidence taken by him. The only witness to prove the entire case was the plaintiff. She stated the marriage, and facts tending strongly to establish the adultery of the defendant, as charged in the complaint.
1Opinion of the Court
Marvin, Justice.
Was Maria Smith a competent witness ? “ A party to an action or proceeding, may be examined as a witness in his own behalf, the same as any other witness.” So reads the Code, as amended in 1857, § 399. Maria Smith is a party to the action against the defendant, her husband. The language of this provision clearly embraces her, and yet, one familiar with the rules of the common law, relating to husband *166and wife, and the reasons assigned, time out of mind for those rules, would be likely to hesitate long, before coming to the conclusion that the legislature intended an innovation…
2Cases cited2 opinions
- Stein v. BowmanSupreme Court of the United States · 1839
- Artcher v. McDuffieNew York Supreme Court · 1849
3Cited by4 opinions
- Freethy v. FreethyNew York Supreme Court · 1865
- Marsh v. PotterNew York Supreme Court · 1860
- Bihin v. BihinNew York Supreme Court · 1863
- Hicks v. BradnerNew York Court of Appeals · 1868