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2 Sandf. 340

Erwin v. Smaller

The Superior Court of New York City

Decided February 24, 1849

The Superior Court of New York City · decided 1849-02-24

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.

Good law ✅— No negative treatment on recordhow we know

Decided 1849-02-24

How this case has been cited

Cited by 5 later decisions — most recently November 1881

5 state decisions

2018491850186018701880decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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By the Court. Oakley, Ch. J.

¶1The 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.(a)

¶2 See Burrell v. Bull, 3 Sand. Ch. R. 15.

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