
    Edward S. Avery, Appellant, v. Lucy E. Lee and Katherine P. Hurlbert, Respondents.
    First Department,
    January 11, 1907.
    Examination of books and papers-^defense of Statute of Frauds not .'considered on such application — inspection of papers in attorney’s possession — attorney acting as business agent hot privileged.
    When in,an action for the specific performance of a- contract to sell lands, the plaintiff moves for an inspection of papers, a defense of the Statute'of Frauds is no harto the’granting of the application if the-complaint alleges the contract- . to convey and the consideration agreed upon.1 The complaint need not allege that the agreement was in'writing, for the Statute of Frauds is an affirmative defense, and the merits of that defense will not be determined on a motion to inspect papers.
    When it appears that the alleged contract of sale was made by the defendants’ attorney in their absence and. that he .was acting as their business agent rather than in his professional capacity, the privilege of -professional secrecy under section 885 of the Code of Civil Procedure does hot obtain.
    The privilege does not extend to business transactions to be negotiated by the ■attorney with a, third party, concerning which the client neither requires nor. receives professional advice.
    If an owner of property employs a counselor at law instead Of a real estate agent to negotiate a sale, he- does not thereby receive immunity-from disclosing the authority conferred upon the attorney.
    If the client can be required- to'disclose the authority, the attorney may also be •' required to do'so; for. it is the privilege of the client and not the privilege Of the attorney -that the statute protects.
    
      Appeal by the plaintiff, Edward S. Avery, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1906, denying the plaintiff’s motion for leave to inspect and make a copy of three certain letters and a cablegram, and that the defendants furnish the plaintiff, or deposit with the clerk of the court, the originals of such papers.
    
      Charles P. Northrop [Arthur Garfield Hays with him on the brief], for the appellant.
    
      Ba/oid B. Ogden, for the respondents.
   Laughlin, J.:

The action is brought for the specific performance of a contract by which it is alleged the defendants, as owners of premises No. 26 West Thirty-fifth street in the city of New York, agreed to convey the same to the plaintiff for the consideration of $105,000. The answer contains a general denial and interposes the Statute of Frauds as a defense.

It is contended that the order was properly granted upon the ground that the plaintiff fails to show a valid contract within the Statute of Frauds. The defendants did not demur to the complaint, and it is' evident that a demurrer would have been unsuccessful. The complaint alleges ownership in the defendants, and an agreement on their part to convey to the plaintiff the premises therein sufficiently described for a consideration agreed upon and specified. It is not essential to the plaintiff’s cause of action that he should allege that the agreement was in writing, because under these allegations he will be at liberty to prove upon the trial a valid agreement within the Statute of Frauds. The Statute of Frahds is a defense which must be specially pleaded, arid it .need not be negatived by the complaint. The plaintiff was not required to set forth, on an application of this kind, the facts showing his cause of action, and, therefore, the denial of the motion should not be sustained on the theory that it does not appear probable that the plaintiff will succeed upon the trial. We, therefore, pass to the merits of the objection to the granting of this motion, which are that the letters and cablegram are in the possession of one William H. L. Lee, an attorney and counselor, who received, them in his professional capacity as attorney and counselor for ■ these 'defendants, and is, therefore, privileged from allowing an inspection thereof.

It' appears that the defendants, at the times in question were in Koine, Italy, where they had been sojourning, if not .residing, for many years.. They owned other real estate in the city of New York and the person (an attorney at law) who received and has the immediate possession of the letters and cablegram represented them, by power of attorney and otherwise, in negotiating leases of their property and contracting for a sale thereof, and also acted as their legal adviser concerning questions arising with respect to the same. In some instances he collected rents for them, but usually the rents were -collected by a firm of brokers and bankers. At this particular time it appears that the only business -the attorney was transacting for them or had represented.- them in transacting for many ■ years, was receiving, passing upon and forwarding offers to purchase this property which was for sale. It does not appear that any question arose with respect to the marketability of the title or otherwise upon which they' needed or received his advice. He assumed to be authorized by them to negotiate a,sale of the premises and read to plaintiff and his brokers extracts from the letter. concerning' which an inspection is sought, tending to show such authority. After negotiating the terms of sale with the plaintiff, . "through his brokers, lie wrote the latter that, so far as he had authority to do so, he considered' the premises sold to the plaintiff and that he would immediately cable one of the owners for con-firmation, and that from a letter recently received he had no doubt _.that the sale would be approved and that he would immediately communicate' the reply received to plaintiff’s brokers, and in the meanwhile would inform any one inquiring about the property that it had been sold. Neither the plaintiff nor his brokers had any personal communication with the owners. It is essential- to the plaintiff’s case that he should show that tlie attorney was authorized by liis constituents to make the agreement for a sale of the premises. The plaintiff is desirous of examining the defendants before-trial, with a view to showing, for use upon the trial, that they, authorized the attorney to make the contract for a ■ sale of the property. It is manifest that if the order is issued for their examination the plaintiff will be met with the objection that the letters at least, if not the cablegram received by the attorney, are the best evidence, and that he may be embarrassed in an endeavor to ascertain the truth by not knowing the contents of the letters and cablegram. Plaintiff, therefore, is desirous of procuring these letters and the cablegram for use upon their examination. The attorney declined to exhibit the letters and cablegram and he has been examined pursuant to the provisions of section 885 of the Code of Civil Procedure for the purpose of using his examination on the motion.

So far as appears by the examination of the attorney and by the motion papers the letter of April 6, 1906, concerning which an inspection is sought and the cablegram of April 27 or 28, 1906, merely related to the authority conferred upon him in negotiating the sale of the premises and the ratification of -his acts, except that the letter contained “ some kindly and polite message.” The attorney, however, declined to permit an inspection of the letter and cablegram or to allow them to be made part of the record of his examination. In these circumstances we think the attorney is not justified on the ground of privilege in refusing to permit the inspection and to deliver the letter and cablegram. The attorney was not acting in his professional capacity but merely as an attorney in fact, virtually the same as a real estate broker in negotiating the sale of the property. The privilege extends to “ all communications made by a client to his counsel for the purposes of professional advice or assistance, * * * whether such advice relates to a suit pending, one contemplated, or to any other matter proper for such advice or aid” (Britton v. Lorenz, 45 N. Y. 51), and “to communications in reference to all matters which are the proper subject of professional employment” (Root v. Wright, 84 N. Y. 72); but I think it does not extend to business transactions of this nature to be negotiated with a third party, concerning which the client neither requires nor receives advice. (Rochester City Bank v. Suydam, 5 How. Pr. 254; Mowell v. Van Buren, 77 Hun, 574 ; Martin v. Platt, 51 Hun, 429; 4 N. Y. Supp. 359; Rosseau v. Bleau, 131 N. Y. 177; Bartlett v. Bunn, 56 Hun, 507; Edison Elec. L. Co. v. U. S. Elec. L. Co., 44 Fed. Rep. 294.) Where an owner of property employs an attorney and counselor at law instead of a real estate agent to negotiate a sale of his property, he does not thereby receive immunity from disclosing the authority conferred upon the attorney, where this is properly in issue. If the client could be. required to disclose the authority, it is manifest that the attorney may be, for it is the privilege of the client, and not the privilege of the attorney, that the law seeks "to protect. (Matter of King v. Ashley, 96 App. Div. 143; affd., 179 N. Y. 281 ; Mitchell's Case, 12 Abb. Pr. 249 ; Jones v. Reilly, 174 N. Y. 97; Doheny v. Lacy, 42. App. Div. 218 ; Whiting v. Barney, 30 N. Y. 330.)

It follows that the order should be reversed^ with ten dollars costs and disbursements,, and motion to require the. witness William ILL. Lee to permit añ inspection of the letter to him from the defendants or one of them under date of April 6, 1906, and the cablegram received by him from the defendants or one of them- on the '27th of 28th of April,. 1906, .concerning the sale of said premises or a ratification thereof and to have the same annexed to his examination, be granted, with ten dollars costs. . '

Patterson; P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order reversed, witli ten dollars costs and disbursements, and motion- granted to extent stated in opinion, with ten dollars costs. Settle order on notice. ■ ; ■  