
    Woods v. Gledhill.
    
      (Supreme Court, General Term, First Department.
    
    March 28, 1890.)
    Witness—Competency—Husband and Wife.
    In an action for crim. con., plaintiff is not prohibited from testifying in his own, behalf by Code Civil Proc. N. Y. § 831, providing that “a husband or wife is not competent to testify against the other upon the trial of an action * * * founded upon an allegation of adultery, except to prove the marriage, ” or disprove the allegation of adultery. Poliowing Smith v. O’Brien, 6 N. T. Supp. 174.
    Appeal from circuit court, Yew York county.
    Action by Henry Woods against Henry G-ledhill. Plaintiff appeals from a-judgment entered upon the dismissal of his complaint.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Purdy & McLaughlin, ( W. H. Reid, of counsel,) for appellant. De Lancey Nicoll, for respondent.
   Daniels, J.

The action was to recover damages for seducing and debauching-the plaintiff’s wife. He was sworn as a witness to establish his right to maintain the suit, and the court held him to be incompetent to prove any fact tending to establish the misconduct alleged as the ground of the action. But by the provisions contained in section 828 of the Code of Civil Procedure it has-been enacted that a person shall not be excluded from being a witness by reason of his interest in the event of the action, or because he was a party thereto, or the husband or wife of a party, except as otherwise prescribed in the same title. The effect of this section is to make the party competent, unless by some other special provision that competency has been denied to him. The only provision supposed to have this effect is that contained in the first part of section 831 of this Code. By that it has been declared that “a husband or wife is not competent to testify against the other upon the trial of an action, or the the hearing upon the merits of a special proceeding founded upon allegation of adultery, except.to prove the marriage,” or disprove the allegation of adultery. But the plaintiff was not offered as a witness to give evidence against his wife, but Ms evidence was proposed to be given against the defendant in the action. It is true that it may have the effect of implicating her in the misconduct, but as the action was not against her, but against another person, the evidence proposed to be elicited would be against him, and him alone. The case, accordingly, was not within this prohibition of section 831 of the Code; and the same point has been disposed of in this manner by the general term of the second department. Smith v. O'Brien, 6 N. Y. Supp. 174. The judgment should be reversed, and a new trial ordered, with costs to the plaintiff to abide the event. All concur.  