¶1By the Court,
¶2I think it quite clear that ■ the wife was properly examined as a witness in this action. 1. She was examined as a witness in her ow;n behalf, where her husband was a co-defendant with her, and where their interests were not conflicting. 2. She was examined as to an agreement made with her husband, where they were contracting parties with each other, and might have been antagonistic parties in a suit between themselves. 3. She was not examined as to, nor required to disclose, any communication (in the proper sense of that term) made by her to her husband or her husband to her.
¶3Under the code, as expounded by the modern authorities, *49she wag in such a case a competent witness. (Code, § 399. Marsh v. Potter, 30 Barb. 506. Babbott v. Thomas, 31 id. 277. Barton v. Gledhill, 12 Abb. 246. 13 id. 13. Shoemaker v. McKee, 19 How. Pr. R. 86.)
¶4Under the facts found by the referee, which were warranted hy the evidence, I think the referee was also warranted in the conclusions of law at which he arrived.
¶51. The husband received from the wife a sum of money belonging to her absolutely, upon a paroi promise to pay the same, at a time when the plaintiff’s debt was not in existence. 2. This pai’ol promise, though void at law, was good in equity, and the receipt of the money under such circumstances formed an equitable consideration for the repayment of the money, or for a settlement of real estate of equivalent value, and for a post-nuptial contract carrying such an arrangement into effect. ■ (Garlick v. Strong, 3 Paige, 440, 452. Taylors v. Moore, 1 Rand. Rep. 563. Atherly on Mar. Set. 161. 2 Kent’s Com. 166. Partridge v. Havens, 10 Paige, 618, 624, 625. Wickes v. Clarke, 8 id. 161, 167. Gage v. Dauchy, 28 Barb. 622.)
¶6Borst v. Corey (16 Barb. 136) is not in conflict with these authorities; for in that case the husband was indebted and insolvent at the time, and the settlement was without any cotemporaneous or antecedent consideration, either legal or equitable, to support it. 3. The conveyance made to the wife hy the husband was no more than a just equivalent for the money borrowed of her, was apparently free from actual fraud, and though executed after the plaintiff’s debtiaccrued, was supported by the antecedent equitable obligation and consideration, and in legal effect related hack to that period.
¶7There was therefore no error in the decisions of the referee, and the judgment entered upon his report must he affirmed with costs.
¶8Sogéboom, Peckham and Miller, Justices.]