
    Emily B. Bartlett, App'lt, v. T. Romeyn Bunn, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 26, 1890.)
    
    Evidence—Pktvtleged communications.
    Where the communication made by a party to his attorney was intended to be communicated to the other party it las°s its privileged character, and the attorney is not precluded from testifying thereto by § 836 of the Code.
    Appeal from judgment of county court, reversing judgment of a justice of the peace.
    
      TS. B. Maxwell, for app’lt; G. S. Nisbet, for resp’t.
   'Mayham, J.

Appeal from the judgment of the Montgomery county court, reversing a judgment of a justice of the peace.

The action was for money had and received by defendant for the plaintiff.

The answer was a denial and a further allegation that all the money received by defendant for plaintiff was paid out by defendant at plaintiff’s request on his liabilities.

On the trial the plaintiff introduced evidence tending to show that tne defendant had harvested and sold hay from lands of which the plaintiff, defendant and others were tenants in common, and that all the proceeds of the hay the defendant had paid out in taxes on the common property, and insurance on the hay, except sixteen cents.

The plaintiff contested the defendant’s authority to pay the tax on the ground that she had not authorized such payment.

To prove authority in fact from plaintiff to defendant, the defendant called one L. A. Stevens, who was an attorney at law, and was doing some of plaintiff’s business in the settlement and management of this joint estate.

The defendant then asked the witness in various forms if plaintiff had directed him to tell defendant to pay the taxes out of the proceeds of this hay.

This was objected to by the plaintiff, on the ground that it was, privileged; and the objection was sustained, and the answer excluded.

The justice rendered judgment in favor of the plaintiff and. against the defendant for $18.57 and costs.

The county court reversed that judgment, and from the judgment entered upon such reversal the plaintiff appeals to this court.

Whether the defendant was authorized to pay the taxes on this common property out of the share of the proceeds of the hay belonging to the plaintiff was a material question in this case, and as the testimony offered bore directly upon that point, if competent, its exclusion was error, for which the county court properly reversed the judgment of the justice.

The rule at common law was well settled that confidential communications made to an attorney by a client relating to a matter in which he was employed or acting as attorney was privileged and could not be given in evidence.

The substance of this rule was that all communications made by a client to his counsel for the purpose of professional advice or assistance are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice and aid, Williams v. Fitch, 18 N. Y., 551, and whenever the communication made relates to a matter so connected with the employment as to afford 'presumption that it was the ground of the address by the client, then it is privileged from disclosure, Britton v. Lorenzo, 45 N. Y., 51; Bacon v. Frisbie, 80 id., 394; so a conversation heard by an attorney between his, client and another relating to the business in which the attorney is engaged for his client is privileged. Root v. Wright, 84 N. Y., 72.

And the substance of this rule is enacted in § 835 of the Code of Civil Procedure, as follows : “’An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment.”

But this prohibition maybe waived by the client, and when the communication is made for the purpose of its publication or comnmnication to another, it necessarily loses its privileged character, and | 836 of the Code provides expressly for such waiver.

It follows, therefore, that when from the very nature of the-communication it was designed by the author for another and to-be communicated to such other, it loses its character as privileged.

In the Matter of the Will of Coleman, 111 N. Y., 220 ; 19 N. Y. State Rep., 501, where the attorney who drew a will was requested by the testator to subscribed as a witness, it was held to be a waiver of the privilege, for the reason that by the very nature of the communication made by the testator he had made it the duty of the attorney to disclose the communication made to him on the-probate of the will.

In the case at bar the question propounded, the answer to which was excluded by the justice, related to a communication required by the plaintiff to be made public, at least to be communicated to the defendant, and if we should assume that the witness was the attorney for the plaintiff in this matter (which by the evidence is by no means certain), still it is quite clear that whatever obligation to secrecy might be imposed by that relation it was expressly waived when the communication was directed to be made to the defendant.

The learned county judge was right in reversing the judgment for the rejection of this offered evidence, and the judgment of the county court must for that reason be affirmed, with costs

Learned, P. J., and Landon, L, concur.  