
    Smith v. Crego.
    
      (Supreme Court, General Term, Third Department.
    
    September 21, 1889.)
    1. Compounding Felony—Evidence—Minutes of Magistrate.
    In an action on a note, where the defense is made that it was given in consideration of an agreement to compound a felony, statements by the prosecuting attorney, contained in the minutes of the magistrate who conducted the preliminary examination into the felony, are not admissible to prove such an agreement to compound by the plaintiff.
    2. Same—Embezzlement—Agreement to Refund.
    A promise by a father to repay money embezzled by big son is not in itself an agreement to compound a felony.
    3. Witness—Privileged Communications—Waiver.
    • Under Code Civil Proc. N. Y. § 836, allowing a person to waive the right of having his communications with his counsel kept secret, a party may call his counsel to testify to conversations between them.
    4. Same—What are Privileged.
    A communication to his counsel by one party, in the presence of the other, is not privileged.
    5. Evidence—Parol.
    An admission contained in a letter may be explained by paroi evidence.
    6. Appeal—Review—Exclusion of Testimony.
    Where there is a conflict of testimony, the erroneous exclusion of any testimony, bearing on the merits, is cause for reversal.
    Appeal from circuit court, Albany county.
    Action by Oscar Smith against Bussell Crego. Judgment was rendered for defendant, and plaintiff appeals.
    Argued before Learned, P. J., and Landón and Ingalls, JJ.
    
      Mark Cohn, for appellant. Chase & Delehanty, for respondent.
   Learned, P. J.

This action is on a note made by Dwight L. Crego and indorsed by Bussell Crego. The defense is that it was given on an agreement to compound a felony. Dwight L. had been in the employment of the Wheeler & Wilson Manufacturing Company, and had been charged with embezzling money. He had been arrested, and was still under arrest when the note was-given. On the defense above stated, the testimony of the plaintiff and that of the defendant are in conflict. The plaintiff offered in evidence the minutes of the magistrate, with the affidavit and warrant. The' defendant objected to a part of the minutes, as follows: “Prosecuting attorney stated that all money due the company had been refunded, and, the prosecution paying-expenses, the court admitted defendant to bail in $500.” At the close of the case, the plaintiff requested the court to charge that the plaintiff is not to be prejudiced, or the jury infer there was such agreement or understanding, from the statement in the minutes of the justice that the prosecuting attorney stated, etc. The court, in reply, said to the jury: “You are to take into account all that was received before you, and give it such weight as in your judgment it is entitled to.” The defendant excepted.

How, the minutes of the justice were admissible, and therefore this statement was before the jury. But it was merely the statement of the magistrate of what was said by the prosecuting attorney. It was no evidence against the plaintiff of any agreement or understanding as to compounding the felony. Yet the jury might, under this instruction, have understood that this statement of the magistrate had some weight in supporting the defense. We think that the plaintiff was entitled to have the jury instructed as he requested. The defendant says that the statement was harmless, because the money was refunded in fact; but the manner in which this statement is made in the minutes seems to indicate that it was inserted as a reason for putting the bail at a small amount, and thus to afford some evidence that there was an agreement to compound the felony.

The defendant, in support of his defense, testified that he and one Storah, an agent of the company, went to the law-office and papers were drawn up. That law-office was the office of Mr. Thompson, who, as the defendant testifies, was plaintiff’s lawyer. The plaintiff then called Mr. Thompson, who testified that he was present when the note was executed, and that plaintiff and Storah and defendant Bussell were present at his office before the execution of the note. He was then asked by the plaintiff to state the conversation which then took place. This was objected to, under section 835 of the Code, and was excluded, to which the plaintiff excepted. How, Thompson was not attorney for Bussell Crego, or for Dwight L. Crego. He was plaintiff’s attorney, or, as is said in one place, the company’s attorney, which was practically the same thing. As he was Smith’s attorney, Smith could waive the privilege. Section 836. And he did waive it, by calling on Thompson to testify to the conversation. In re Coleman, 111 N. Y. 220, 19 N. E. Rep. 71.

Furthermore, both parties to the agreement were present at the conversation; and, under the common-law rule as to privilege, communications to an attorney were not confidential when both parties were present. Whiting v. Barney, 30 N. Y. 330; Britton v. Lorenz, 45 N. Y. 51. Section 836, though it does not use the word “confidential,” is intended to be only a statement of the common-law rule. See note to the section. So far, then, as appears in the case, it seems to us that Thompson should have been allowed to testify to the conversation inquired about.

About four months after the execution of the note, a letter was written by plaintiff to defendant, containing the words: “I went to Schenectady yesterday morning, and arranged, through the district attorney, to drop Dwight’s case. ” The plaintiff testified that he did not arrange with the district attorney to drop the case that was then pending. He was then asked: “Explain what the language [above quoted] refers to.” This was objected to and excluded. The plaintiff excepted. And the learned justice, in his charge commenting on this letter, said that the law prevented the plaintiff from stating what he intended by the letter; that the law presumed that he intended what the letter imported on its face. How, this rule would be quite correct if applied to a written contract, or to a writing on which another party had relied in his action. But this letter was a mere admission; not any more binding because it was in writing. Whatever contract the parties entered into liad been made long before; and this letter was only a statement of what plaintiff had subsequently done. He might disprove the truth of the statement. He might, if the fact were so, show to what his words referred. Suppose (merely to illustrate) that “Dwight” referred to some person other than Dwight L. Crego, the plaintiff could have shown this. We think, then, that the witness should have been allowed to answer the question.

It is plain, in this case, that the note was given principally to settle a large part of the moneys which Dwight L. Crego owed the company. It was right that he should pay or secure these moneys, and it was proper that his father should assist him in restoring to the company what he had taken from it; and the father might rightfully do this, in the hope that the burden which would thus fall on an innocent man would be a sufficient punishment for the crime. Hatch v. Collins, 34 Hun, 314. Of course, an actual agreement to compound must not be made; but full compensation to the wronged party is a duty, and is not illegal. 0

In the conflict of evidence in this case, where the plaintiff fully denies the alleged agreement, the exclusion of any proper evidence bearing on the merits is especially material, and may have operated to defeat the plaintiff’s claim. We are therefore of opinion that the judgment should be reversed, and a new trial granted; costs to abide the event. All concur.  