Louise T. Powers, Respondent, v. James J. Powers, Appellant

Louise T. Powers, Respondent, v. James J. Powers, Appellant. Evidence. Upon the trial of an action for a separation it is improper to reject the testimony of the oldest son of the parties. Appeal by the defendant, James J..Powers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 23d day of December, 1899, upon the decision of the court, rendered after a trial at the Nassau Special Term. Alexander S. Bacon, for the appellant. R. McO. Robinson, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : This judgment must be reversed and a new trial granted. The action is for separation, and the defendant upon the trial offered as a witness the oldest son of the parties. The learned trial court refused to permit him to be sworn or to give evidence. No legal ground appears for such action, and as the defendant insisted upon his right to have the testimony received as a part of the case, and excepted to the court’s refusal to grant such right, the error is one which requires a reversal of the judgment. All concurred, except Goodrich, P. J., not voting. Judgment reversed and new trial granted.