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Opinion of the Court, per FOLGER, J.

1 Coke's R., p. 380, 155, b; Say v. Smith, supra; Plowd., 269– 273, b), because no interest passes ont of the lessor during his lifetime; and after his death the naming of the years will come too late; (Platt on Leases, 2d vol., p. 72, most of whose citations I have verified, and find that they are to the point stated in the text). It follows that the demand by the plaintiff for a renewal of the lease, and the tender of an instrument in writing to the defendant Wager, for execution by him, was of no avail. There was a specified term of fifteen years fixed in that instrument. But a renewal for that term was not provided for in the lease; nor was there the power given in it to the lessee to name any definite term; nor was the term named in the lifetime of the lessor.

In my judgment the most that the lease created, by the provisions under notice, was a tenancy from year to year, determinable at the will of either party upon giving the requisite notice.

The learned referee was right in his conclusion of law that the plaintiff was not entitled to a renewal or extension of the lease as demanded; and that it had shown no facts entitling it to the equitable relief sought. But he was in error in adjudging that the plaintiff had no remaining interest or title in or to the premises, or to any part of the same; and that the holding of the premises by the plaintiff, since the expiration of the term of fifteen years, has been and still is wrongful; and that the defendant Wager, is entitled to possession of the premises, with damages for the withholding thereof.

The General Term reversed the judgment of the referee as a whole; and in this we think it was in error.

The judgment should be modified. It should be adjudged that the plaintiff is not entitled to a renewal or extension of the lease as demanded, and that it has shown no facts entitling it to the equitable relief sought. And the defendants should have judgment to that extent against the plaintiff, with costs in all the courts.

All concur, except PECKHAM, J., not sitting, and ALLEN, J., not voting.

Judgment accordingly.

Statement of case.

49 510 145 585 49 510 149 545



Under the provisions of the act of 1867 (chap. 887, Laws of 1867), in an

action between husband and wife either is a witness in his or her behalf

against the other, save in the cases excepted in said act. This act applied to all trials thereafter had in actions pending when it took

effect, and under it the husband or wife can testify to conversations and communications (not confidential) had with the other prior to the taking

effect of the act. The act as thus interpreted is not repugnant to the provision of the Con

stitution of the United States (sub. 1, § 10, art. 1) prohibiting the passage

of an ex post facto law. An order making an extra allowance when it does not exceed the limits

prescribed by the Code is not reviewable in this court.

(Argued May 24, 1872; decided May 28, 1872.)

APPEAL from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of defendant entered upon the report of a referee.

The action was brought by plaintiff against her husband to recover an alleged balance of moneys in his hands belonging to her separate estate and received by him as her agent. The defence was payment.

Upon the trial defendant offered himself as a witness in his own behalf, and plaintiff's counsel objected that he was incompetent. Objection overruled, and he was sworn and examined. After proving the payment of certain bills for goods purchased by plaintiff, and of various sums of money to her, he was allowed to testify, under objection, to conversations with her in which she stated and agreed that the sums so paid should apply as payment of the balance in defendant's hands. The referee found in favor of defendant.

Elbridge T. Gerry for the appellant. Defendant was not competent as a witness in his own behalf. (Logendyke v. Logendyke, 44 Barb., 366; Cover v. Brook, 21 id., 546; Dickerman v. Abrahams, 21 id., 541; Bass v. Bean, 16

Opinion of the Court, per FOLGER, J,

Howard, 93; Yale v. Dederer, 18 N. Y., 265; 22 id., 450; Freethy v. Freethy, 42 Barb., 369; Gould v. Gould, 39 How., 441; Arborgast v. Arborgast, 8 id., 297; Smith v. Smith, 15 id., 165; R. Ins. Co. v. Noble, 5 Abb. N. S., 355.) The statute of 1867 did not affect existing suits. (Trist v. Cabenas, 18 Abb., 143; Hackley v. Sprague, 10 Wend., 116 ; Dash v. Van Kleeck, 7 J. R., 486; Snyder v. Snyder, 3 Barb., 623; Bates v. Stearns, 23 Wend., 482.) The act has no retroactive effect so as to admit marital conversations had before it took effect. (Dash v. Van Kleeck, 7 J. R., 477; Sandford v. Bennett, 24 N. Y.; Ratcliffe v. Wales, 1 Hill., 63.) If the act controls pending proceedings it is an ex post facto law and void under the Constitution of the United States. (People v. Humphreys, 7 Johns., 314; Gahagan v. The People, 1 Parker Cr. R., 384; Clayton v. Wardell, 4 N. Y. R., 230; 1 Greenleaf Ev., $ 339; 1 Hale P. C., 693; 1 East. P. O., 469; 1 Russell on Crimes, 218; 3 Greenleaf on Ev., $ 206; Calder v. Bull, 3 Dallas, 389; Cumming v. State of Mo., 4 Wal., 326.)

William Henry Arnoux for the respondent. Defendant was a competent witness. (Minier v. Minier, 4 Alb. Law J., 317.) The legislature has authority to enact a new rule in regard to evidence, and that does not affect vested rights. (Neass v. Mercer, 14 Barb., 318, 322.)

FOLGER, J. 1st. The first question made in this case is, whether the defendant was properly admitted as a witness in his own behalf and against the plaintiff, his wife.

It is claimed that the provisions of the act of 1867 (2d Laws of 1867, p. 2221), do not enable the defendant to becoine a witness against his wife in an action in which they are the only and antagonistic parties.

I have reached the opposite conclusion. It must be conceded that the object of the enactment was to alter the common-law rule which forbade the husband or wife being a witness for or against the other. Its object was to make avail

Opinion of the Court, per FOLGER, J.

able in the trial of issues the evidence of classes of witnesses whom the rules of the common law excluded. It designated these classes as “the husband of any party to the action," and as “the wife of any party to the action.” It declared that all persons falling within these designations should be competent and compellable to give evidence, “the same as any other witness.” It declared further, that they should be thus competent and compellable "on behalf of any party to the action." It is conceded that where the husband or the wife is a party to the action, and the other is not, that the husband or the wife, as the case may be, is within the language of the statute. But it is contended that this language does not disclose an intention that he or she may be a witness for or against the other, when both are parties to the action, antagonists in it.

I am at a loss to perceive where the language halts or suffers a change in its meaning, in going toward one purpose more than toward the other.

If the wife sues the husband, or vice versa, she is, and he is, in the language of the act, “any party thereto.” She is, in the language of the act, “the wife of any party thereto.” He is, in the language of the act, “the husband of any party thereto." And what other are the new classes of witnesses created by the statute, than the wives of parties to the action, and the husbands of parties to the action? And on whose behalf is it that these new classes of witnesses are competent and compellable to give evidence the same as any other witness, if not “on behalf of any party to such action?” Does not the husband, plaintiff or defendant, suing or sued by a wife, defendant or plaintiff, fall directly within a class of the witnesses newly privileged and designated by this statute ? And is not a husband, plaintiff or defendant in such action, directly within the description of the one in whose behalf the husband or the wife of a party may be a witness? He is a party to an action in which a wife is the opposing party.

Certainly the letter of the law is met by the facts, and the facts are met and embraced by the letter of the law. Nor is any violence done to the letter of the law in applying it to a

Opinion of the Court, per FOLGER, J.

case of husband and wife, parties against each other in an action.

I am well aware that as much might be said of the provisions of sections 398, 399 of the Code of Procedure. There the phrases, “no person offered as a witness,” or “as a witness in


"shall be excluded by reason of his intercst in the event of the action,” “or because he is a party thereto,"

"a party to the action,” person for whose immediate benefit it is prosecuted or defended,” and similar phrases, as they occur in the varying amendments to those sections or one of them, on a strict interpretation, would apply to a husband or to a wife, a party or interested, even though the opposing party be a husband or a wife.

And I am aware that it has been often held that from these phrases there could be no deduction of an intent in the legislature to abrogate the rule of the common law which excluded the husband and wife. And that further it was held, that it was not intended to remove existing disqualifications or to make a person a witness, because he is a party, when he would otherwise be incompetent; but only that, whatever not being a party, any one might have testified to, the same he might testify to, though made a party; that it was only intended to remove the disqualification of being a party, and not the disqualification of the marital relation.

This statute (of 1867) seems to be the complement in this respect of those sections of the Code, and as they were intended to remove the disqualification of being a party, so this is to remove the disqualification of being a husband or a wife, so that, under the Code and this act as one, there may be neither the disqualification of being a party nor that of being a married person. And it was admitted in many of these decisions, that the letter of the sections of the Code extended to and clearly embraced married persons when they were parties. ( Wehrkamp v. Willett, 1 Keyes, 250; Smith v. Smith, 15 How. Pr. R., 165.) But the courts, venerating the commonlaw rule which prevented married persons being witnesses for


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