
    Rogers vs. Lyon & Griffen.
    In an action against the grantees in a deed, upon a covenant therein that they would assume and pay certain specified incumbrances, as portions of the purchase money, an attorney and counsellor who drew the deed, was asked whether the deed was read over to the grantees, after it was drawn ? And whether the question was up, then, as to whether the grantees would be personally liable, on the deed ? These questions were objected to, as calling for privileged communications between attorney and client. The objections were overruled by the referee, and the evidence admitted. Held that this was an error, for which a.newtrial must be granted.
    APPEAL from a judgment entered upon the report of a referee.
    On the 8th of December, 1866, the First National Bank of Palmyra recovered a judgment against Powers & Allen for $2,423.04. On the 24th of the same month Powers & Allen made a general assignment of their property to T. Scott Ledyard, in trust for creditors. On the 6th of February, 1867, the bank assigned the judgment to the plaintiff in this action. On the 18th of October, 1867, Ledyard sold to the defendants in this action the real estate of Powers & Allen, assigned to him, and gave them a deed thereof. They accepted the same and went into possession. That deed recites as paid, a consideration of $5,400, and among other things, declares that the conveyance is subject to the bank judgment above referred to, and certain described mortgages: “All of which [it recites] are liens upon' said premises, and upon which is due and unpaid, or to become due, an amount equal to the consideration herein above mentioned, and all of which the said parties of the second part [the defendants] hereby assume, and expressly agree to pay as portions of the purchase price of said premises.”
    A portion of the bank judgment had been paid, and the plaintiff brought this action, as assignee of this judgment, to recover of the defendants, on the covenant in the deed,‘the balance remaining due upon such judgment.
    
      The answer of the defendants admits most of the allegations in the complaint, but states that the portion of the deed above set forth, and which imports a personal obligation on the part of the defendants to pay the judgment, was “inserted therein without the knowledge or consent of the parties to said deed, or any or either of them; nor were they, or either of them, aware at the time of execution or delivery of said deed, that the same had been inserted; and they further say, that they are informed and believe that the same were inserted by the instigation or procurement of some other person than the parties to said deed, or either of them, and without their consent or knowledge ; that so far as the parties to said deed are concerned, the said undertaking or agreement was inserted by mistake.”
    The action was referred to a referee, who reported in favor of the plaintiff for $2,173.54 ■
    
      George F. Danforth, for the appellant.
    The referee erred in admitting the evidence of George W. Cowles,
    I. Cowles drew the deed in question, was the legal adviser of the defendants, ..and Ms entire testimony bore with great distinctness upon the main question at issue, (a.) whether the defendants knew of the claim imposing personal liability, (b.) and whether they knew the effect of that claim; or in other words, whether any mistake had occurred in the preparation of the deed, or on their part in executing it, as alleged in the answer. (The People v. Nevins, 1 Hill) 161.) 1. The evidence was inadmissible. In Britton v. Lorenz, (45 N. Y. 57,) the court says: “The rule deducible from the authorities is, that all commumcations made by a client to his counsel for the purposes of professional advice or assistance, are privileged, whether such advice relates to a suit pending, one contemplated, or to any other matter proper for such advice or aid.” And in Banlc 
      
      of Utica v. Mersereau, (3 Barb. Ch. 597,) the rule is applied, after full examination of the cases, to communications which, if proved, would charge the client with knowledge of any fact. And in Sanfford v. Remington, (2 Ves. Jr. 289,) the chancellor held that the attorney should not be permitted, as a witness, to disclose “the conversation as to the deed with regard to what was communicated, or to the reasons for making it.” These well settled rules were violated by the referee, in this case. The object of the plaintiff was to show that the defendants knew the contents of the deed, and understood the effect of a certain provision contained in it. The attorney was not competent for that purpose, because Ms only knowledge upon that subject was acquired by him professionally, and on the employment of the defendants. The evidence of Cowles was important. 1st. It was introduced to contradict the testimony of Allen, as to Ms knowledge of the contents of the deed; and 2d. Upon it the referee must have based Ms finding made at the settlement of the case, to the effect “that" the deed was read over to them, one or both, before the same was executed, and they fully knew and understood its contents before, and at the time of its execution and delivery to them.” The knowledge which enabled him thus to testify, was acquired through his professional employment; it was, therefore, incompetent, and against its disclosure the party is to be protected, on principle. (Greenhorn v. Gaskill, 1 M. & K. 98,103. Bolton v. Liverpool, Id. 94, 5. Ross v. Gibbs, 8 Eq. Cas. [L. R.] 522. Wentworth v. Lloyd, 10 House of Lords, 589.) In Jenkinson v. The State, (5 Black, 465,) the court says: “When an attorney is consulted on business witMn the scope of his profession, the communications on the subject, between Mm and his client, are strictly confidential. The statements of each to the other in such cases are privileged, and the attorney should neither "be required or permitted by any judicial tribunal to divulge them against his client, if the latter object to the evidence.”
    
      W. F. Cogswell, for the respondent.
    The referee properly received the evidence of Mr. Cowles, that the deed was read over to the grantees, so that the question was up as to whether they would be personally liable on that deed. There are several answers to the exceptions upon this point. 1 There is no evidence in the case that Mr. Cowles was an attorney; and. only communications to counsellor, solicitor or attorney, or those through whom they act, as clerk or interpeter, are excluded. (Greenl. on Ev. § 239. Stark. on Ev., voI. 2, p. 229. Andrews v. Soloman, 1 Pet. C. C. R. 356. Whiting v. Barney, 30 N. Y. 330.) Nothing will be presumed for the purpose of reversing a judgment. 2. No communications from client to counsel are excluded, except such as have relation to some suit or judicial proceedings existing or anticipated. (See the very able opinion of Selden, J., in Whiting v. Barney, supra.) 3. There was no communication asked for by the question, and the rule only excludes such; acts and transactions may be proven by an attorney as well as by any other person. Coveney v. Tannahill (1 Hill, 33) is precisely in point. In that case, the plaintiff relied upon an account stated and signed by one of the defendants. The defendants, who moved for the new trial, sought to defeat the effect of this by showing that the account was stated, after an injunction had "been served upon the partner who signed the statement, arid for this purpose called Mr. Sill as a witness, and asked him whether he was present when the account stated was signed, and if so, when and where it was signed and who were present. TMs was objected to as privileged communication, and was sustained, and for this reason a new trial was granted. In Lord Say and Seal’s case, (10 Mod. 40,) an attorney, who had been entrusted in suffering a recovery, was called and admitted to prove that the deed had been ante-dated five months. In Doe v. Andrews, (Cowp. 845,) Lord Mansfield said: “I have known an attorney obliged to prove his client’s having sworn and signed the answer upon which he was indicted for perjury.” In Sandeord v. Remington, (2 Vesey, Jr., 289,) the chancellor said: “The witness, an attorney, may be called upon to disclose all that did pass in his presence on the execution of the deed; so his having been sent by his client with orders to put the judgment in execution. That is an act, but he is not to disclose private conversation as to the deed with regard to what was communicated as to the reasons for making it.” (See also Buller’s Nisi Prius, 285.) By all the cases it will be found that the exclusion applies to some communication made orally or otherwise by the client to his counsel, for the purpose of legal advice, and it will be seen that such rule of exclusion was not violated in this case. There was no communication disclosed. The evidence given consisted of two facts: first, that a deed was read over before it was executed; second, that a certain subject was the topic of conversation. 4. The defendant had himself testified in relation to this interview.
   By the Court, E. Darwin Smith, J.

A new trial should, I think, be granted in this case for the error of the referee in overruling the objection to the testimony of the witness, George W. Cowles. The deed, executed to the defendants, containing the assumption of the incumbrance in question, was exhibited to this witness, and he testified that he drew the paper; that during a part of the time the grantees were present. Lyon & Griffen (the defendants) brought the papers, from which he got the data, as well as from them, from which he drew the deed. He was then asked: “Was the deed read over to them after it was drawn?” The question was objected to by the defendants’ counsel as a privileged communication. The objection was overruled by the referee, and the defendants’ counsel duly excepted, and the witness answered: “Itwas read over by myself to Lyon & Grillen, both; don’t recollect as it was more than once. I copied it mostly from deed Exhibit 9, (which - contains the same provision,) and either that or this was read over and talked about a good deal. The one I drew was read over after I drew it.” He was then asked: “Was the question up, then, as to whether these parties would be personally liable on that deed?” The defendants’ counsel objected to this question as a privileged communication. Objection was overruled and the counsel excepted, and the witness answered as follows: “It was ; the subject was talked about in connection with the value of the place, and the amount of ' incumbrances on the place was talked over.” This testimony of the witness was very material, and, it seems to me, was improperly received. The only question in respect to it is, whether the objection to it was taken with sufficient distinctness. The questions are stated to have been objected to as privileged communications. This is the way the objection is taken down by the reporter, but it is quite apparent that the parties and the referee clearly understood the counsel raising the objection as insisting that the question called for an answer that would disclose privileged communications between Judge Cowles and his clients. The. witness' was known to them all to have been a counsellor at law and the county judge of his county, and he was asked to disclose facts learned by him from his clients in the confidence reposed by his clients in him as their counsel. He was called upon to draw, and did draw, the deed which contained the provision in dispute, and which the defendants claimed was inserted in such deed by mistake and without their knowledge. Their lawyer was called to refute such defence, and does, by his testimony, show that it was unfounded. To require or allow him to give such testimony, was and is a clear invasion of the privilege of parties, in respect to their relations with, and communications to, or from, their counsel. It seems to me quite clear that the objection to this testimony was well taken, and that the point of the same was clearly understood by the parties and-the referee, and that it was clear error to overrule such objection and receive such testimony. For this error, and upon this ground, I think the judgment should be reversed. I see no other error in the decision of the referee.

[Fourth Department, General Term, at Rochester,

September 10, 1872.

Mullin, Talcott and E. D. Smith, Justices.]

The judgment should be reversed, and a new trial , granted, with costs to abide the event.  