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court in inequitably helping such a husband as we have here. See Chamberlain a. People (23 N. Y., 85, 90),-but the point was really not passed upon by the court. The amendment to section 399 of the Code, made 1862, applies. It is true that the words of the amendment are sweeping: but it is respectfully insisted that this provision does not do away with disability arising from a peculiar position, as that of husband and wife, although it otherwise allows all persons not under such disability to be witnesses in their own actions. The incompetency as to a wife or husband, is an incompetency from other causes than being a party to the record. Before the last amendment neither wife nor husband could be a witness, under the Code, for or against each other. (Pillow a. Bushnell, 5 Barb., 156; Erwin a. Smaller, 2 Sandf., 340; Hasbrouck a. Vandervoort, 4 Ib., 596; Smith a. Smith, 15 Iow. Pr., 165.) In P. a. P. (24 lb., 197), the head-note is not sustained by the text.

IV. Here was evidence to sustain the judgment, aside from any thing the husband or wife could have said, and as the defendant had precluded himself, by his pleading, from showing any thing wrong on the part of the wife, what he might have had to state, could not possibly have countervailed the substantive evidence given by others. (Whispell a. Whispell, 4 Barb., 217.)

V. It is proper to look at this case as though it were an application for a new trial. A new trial will be refused on a case, although the grounds taken at the trial were valid, if it is clear from other considerations, that the result would not be changed. (Horton a. Hendershot, 1 Hill, 118.) Where sufficient material facts appear to have been proven by other witnesses, the court will not grant a new trial on a case from the fact that an incompetent witness was permitted to testify. (Gardenier a. Tubbs, 21 Wend., 169.) This case is an equitable one, and may be looked at as though testimony had been taken under a feigned issue. All that a court of equity requires is, to satisfy its conscience. (Bootle a. Bloomdell, 19 Ves., 494; Woodworth a. Van Buskerk, 1 Johns. Ch., 432; Dunham a. Winans, 2 Paige, 24; Hampson a. Hampson, 3 Ves. & B., 41; Parker a. Ray, 2 Russ., 63; Muloch a. Muloch, 1 Edw., 14.)

VI. The defendant could have moved for a new trial at special term (Code, §§ 264, 265); he has, by his appeal, brought

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before the general term the question of the merits as connected with the judgment.

BY THE COURT.*-SCRUGHAM, J.-The plaintiff is the wife of the defendant, and the action is brought by her to obtain a judgment of separation from bed and board forever on account of alleged cruel and inhuman treatment, and of such conduct towards her on the part of her husband as rendered it unsafe and improper for her to cohabit with him. In addition to the facts alleged in the complaint as constituting this cause of action, it is also alleged that the plaintiff, in the year 1854, purchased a farm and premises in Queens county, and the furniture in the house therein with her own money, and that such farm and furniture are her separate property, and in the prayer for relief she asks that proper provisions may be made in the judgment for her having sole possession of such household furniture, that all proper provision be made for allowance, present alimony and costs, and that she may have such further and other relief as may be proper.

On the trial before the referee a witness, produced by the plaintiff, was asked whether he had seen any thing harsh in the defendant's conduct towards his son Joseph, while his mother, the plaintiff was present. The question was objected to by defendant's counsel, and the referee overruled the objection, but stated that he would reserve his decision on the admissibility of the question, and directed the witness to answer, to which ruling and decision the counsel for the defendant excepted. If the referee had afterwards decided that the testimony which was elicited was inadmissible, it might be necessary to inquire whether he could properly hear it and reserve his decision upon its admissibility until his final decision of the cause. In all of the cases to which we are referred upon this question, testimony was received on the trial and afterwards rejected, and this was held to be error because impressions made by evidence which is improperly received may remain after it is stricken out, and may influence the final decision. If, however, the testimony is admissible and is retained, the declaration of the referee that he will reserve his decision upon its admissibility

* Present, BROWN, SCRUGHAM, and Lorr, JJ.

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until his decision of the case, cannot prejudice the party who objects to it, provided he is given the benefit of an exception to the overruling of his objection.

In this case an exception was taken to the ruling of the referee in receiving the testimony, and the important inquiry is as to its admissibility. It did not relate to any act of violence to the plaintiff's person, and it cannot be received if we are to construe the statute which declares cruel and inhuman treatment by the husband to the wife to be a cause for separation, to limit the evidence of such treatment to proof of the bodily injuries he may inflict upon her. But such a construction can- not be tolerated.

There are mental as well as physical sufferings, and as great cruelty and as much inhumanity may be manifested in producing the first as in causing the latter. They may be and often are produced by acts which cause no physical pain, and even by words alone. Accordingly, in cases like the present, such acts and words have been regarded as cruelties. Spitting on the wife is a gross act of cruelty (Clohen's Case, Hetley, 149; D'Argular a. D'Argular, 1 Hagg. Ecc. R., 776); so also is a groundless and malicious charge against the wife's chastity (Durant a. Durant, 1 Hagg. Ecc. R., 769; Lockwood a. Lockwood, 2 Curteis Ecc. R., 281); and it surely cannot be denied that the savage who, in the presence of a mother, tortures or slays her helpless infant, is guilty of as great cruelty to the mother as to the child; so the husband who in the presence of his wife, and notwithstanding her remonstrances, prayers, and entreaties, unmercifully and cruelly beats her young child, outrages her maternal tenderness and sympathies, and commits a violence upon her feelings which is cruel and inhuman. The evidence in regard to the treatment of the boy Joseph, does not establish such a case as I have supposed, nor indeed does it very distinctly show that the punishment to which the defendant subjected him was more severe than that which, as a father, he might lawfully inflict. The question is not, however, upon the effect of the evidence, but as to its admissibility, and we are sustained by authority in holding it to be admissible. (Perry a. Perry, 1 Barb. Ch., 516; and 2 Ib., 311.)

The statute provides that the defendant in an action for separation or limited divorce, may prove in his justification the

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ill conduct of the plaintiff, but this must be of such as preceded or was contemporaneous with that which seeks to justify, for no subsequent conduct of the defendant could furnish any reason, excuse, or justification for his precedent act, and therefore the question as to the residence of the plaintiff, after she left the defendant, proposed, as it is alleged, for the purpose of showing "an improper course of life," was irrelevant, and the ruling of the referee in sustaining the objection to it was correct.

The complaint, in stating the acts of cruelty upon which the plaintiff intended to rely as constituting her cause of action, gave the dates of their occurrence with sufficient particularity to inform the defendant that some of them happened more than ten years before the commencement of the action, and if he intended to object to proof of them on that account, he should have taken the objection by answer, for such is the positive requirements of the Code (§ 74); equally applicable to those actions which were formerly known as suits in equity, as to actions at law.

The statute which authorizes actions of this character, provides that "upon decreeing a separation in any such suit, the court may make such further decree as the nature and circumstances of the case may require, and may make such order and decree for the suitable support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as may appear just and proper." (2 Rev. Stat., 147, § 54.)

To enable the court to exercise this power intelligently, the pecuniary circumstances of the parties must be inquired into, and the allegation in the complaint as to the separate property of the plaintiff, and the evidence in regard to it were pertinent to this inquiry. The order of reference sent the action and all the issues therein to the referee, to hear, try, and determine. The allegations of the complaint in regard to the plaintiff's separate property were denied by the answer, and the question thus presented was one of the issues which he was ordered to decide. My brethren, being a majority of the court, are of opinion that having made this decision, he was also authorized to determine the amount the defendant should be adjudged to pay for the suitable support and maintenance of his wife and children, and that it was not irregular to enter a judgment em

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bracing the further decree of this character authorized by the statute, without first applying to the court.

We have repeatedly held in this district, that the acts which allow parties to be witnesses in their own behalf, are not to be so construed as to permit husband and wife to be witnesses for or against each other.*

* In some other districts of the Supreme Court than the first and second, and in the New York Common Pleas, a different rule has been followed.

In the case of AIKEN a. BAUMANN, Hon. Murray Hoffman (lately judge of the New York Superior Court), to whom the cause was referred, fully discussed this point, and Held, that according to the weight of authority in the Supreme Court of this State, husband and wife were competent as witnesses for or against each other; and that where one of them is admitted to testify, and says any thing which bears upon the case as sustaining the other, there can be no restriction on cross-examination which would not apply to any other witness.

He also Held, that in an action by a judgment-creditor to set aside as fraudulent a conveyance of the debtor's property, the debtor who is named in the summons and complaint as a defendant, and against whom relief, at least as to costs, is sought, is a party, within the provisions of section 399 of the Code of Procedure, relating to the examination of parties.

The action was against Baumann, his wife, and others, It was brought by a judgment-creditor after execution returned, to set aside conveyances by which certain real estate was vested in the defendant, Mrs. Baumann, as made in fraud of creditors.

The defence of the wife was, in substance, that the real estate in question was not worth over $6,500, and the other property about $1,000; that she was worth, at the time of her marriage, about $7,000 in her own possession; that in the month of April, 1859, Baumann held the property subject to a mortgage for $1,800, to the Williamsburgh Insurance Company; and to another for $5,000, to T. Hoffstetter, and was indebted to Joseph Wangler in the sum of $1,000, which she had guarantied; that in April, 1859, she purchased the Hoffstetter mortgage, and paid the amount out of her separate property, and took an assignment; that at the same time, her husband conveyed the property to Wangler, and in payment of the $1,000 so guarantied, subject to the mortgages, being $6,800, and about $200 interest due, and Wangler sold and conveyed this property to her; that she paid him the $1,000; the $1,800 now remained a lien, and she now held the $5,000 mortgage. She denied all fraud, and averred possession by her.

William W. Peck, for the plaintiffs.

T. C. T. Bulkley, for the defendants.

HOFFMAN, Referee.-I agree with the counsel of the defendants, that the defendant Baumann is a party in the sense of the 399th section. He is named in the summons and complaint, and relief is sought at least for costs against him. (See Judge Ingraham's opinion in Macondray a. Wardle, 26 Barb., 612.)

He was probably a necessary party. I agree with the counsel of the plaintiff, that if Baumann is a witness in the cause, and says a word which bears upon the case as sustaining the wife's defence, there can be no restriction on a cross-exam