
    Haulenbeek et al. v. McGibbon.
    
      (Supreme Court, General Term, Fourth Department.
    
    April, 1891.)
    Witness—Privileged Communications—Attorney and Client.
    In an action on a note, a witness testified that at the date of the note he was the attorney for the owner thereof in reference to a claim of the owner against the maker; that after some negotiation the note sued on, bearing the indorsement of defendant, was delivered in settlement of the claim; that he (witness) acted for both parties in procuring the settlement, “ as a sort of mutual friend; ” that he went to New York three times while endeavoring to procure a settlement, his expenses for two trips being paid by the owner of the note, and partly paid for the third by defendant, but that he received only enough to pay his expenses; and that he was not retained as counsel by either side, and was not asked by defendant so to act. Meld, that statements made by defendant to the witness in relation to the indorsement were not communications between attorney and client “in the course of professional employment, ” within Code Civil Proc. N. Y. § 835.
    Appeal from special term, Delaware county.
    Action by Anna B. Haulenbeek and another, as executors of James H. White, deceased, against Daniel MeGibbon, upon a note dated September 8, 1884, for $2,000, made by Hat han C. Wood, and indorsed, as it is alleged, by the defendant, and is payable at Delaware County Bank one year after date. The answer denies the indorsement and alleges that it is a forgery. The case was tried at the Delaware circuit, February, 1887, and a verdict rendered for the defendant. The note was delivered to Mrs. C. F. White, and by her transferred to James H. White, in whose name the action was brought. Since the trial he has died, and the plaintiffs have been substituted in his ¡dace. From an order denying the plaintiffs’ motion for a new trial, made upon a case and exceptions, and upon the ground of newly-discovered evidence, plaintiffs appeal.
    
      Argued before Hardin, P. J., and Merwin, J.
    
      John B. Gleason, for appellants. Edwin 5. Wagner, for respondent.
   Merwin, J.

Upon the trial of this action Samuel H. Fancher was called as a witness for the plaintiff, and testified that lie was a lawyer, and was at the date of the note acting as attorney for Mrs. C. F. White in reference to a claim she had against Wood, the maker; thatafter some negotiation the note, bearing, as was supposed, the genuine indorsement of the defendant, was taken in settlement of the claim, and delivered to Mrs. White; that about the time the note became due it was sent to the Walton Bank for collection, and, as the witness thinks, delivered by him to Mr. Mead, an officer of the' bank; that the witness had the note in his possession, and McGibbon, the defendant, saw it there. The witness was then asked the question: “While the note was in your possession, did you have a conversation with Mr. McGibbon in relation to the note?” The witness then stated that in any conversation he had with McGibbon he was, in his judgment, acting in a double capacity, and that the relations, to a certain extent, of counsel and client existed; that in his further acting in the matter he was endeavoring to procure a settlement between the parties; that he went to Hew York to see Mr. and Mrs. White Upon three occasions afterwards, and two of the times the plaintiff paid his expenses, and at one time the defendant paid a part of his expenses; that he rendered an account to Mr. White for all the services that were rendered, by whicli he received a sum of not much more than enough to cover his expenses; that he was not retained by McGibbon as his counsel in any way, was not retained by either side, declined to have anything to do with either side; that, so far as anything he did, he did it with the full knowledge of both parties, and refused to have anything to do as attorney upon either side of the case; that McGibbon asked to have the note sent up to the office, and he (McGibbon) looked upon him (the witness) as a sort of mutual friend in the matter, and he came there, and talked freely upon the matter; that to a certain extent he considered he was acting in the same capacity as he would if he was drawing a.contract for two persons; that McGibbon did not ask him to act as his attorney, but he paid a portion of his expenses going to Hew York afterwards to see about a settlement. It does not appear that he went at defendant’s request. The witness then stated that he had a conversation with Mr. McGibbon in reference to his indorsement upon the back of the note, and was asked to state such conversation. To this the defendant objected that it was a conversation with the witness as his counsel, and was privileged. The objection was sustained, and plaintiff excepted. •

By section 835, Code Civil Proc., it is provided that “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.” Before this section can apply in any case, a contract relation of attorney and client must exist, based upon an employment by the client. Earl, J., in Renihan v. Dennin, 103 N. Y. 579, 9 N. E. Rep. 320. It is not enough that the communication be confidential; the fact of professional employment must also exist. Bank v. Suydam, 5 How. Pr. 258. The privilege does not apply to cases where the party applied to, though an attorney, refuses to act as such, and is therefore only applied to as a friend. 1 Greenl. Ev. § 244; Greenough v. Gaskell, 1 Mylne & K. 104; Beeson v. Beeson, 9 Pa. St. 301. In the present case it distinctly appears that the relation of attorney and client did not exist between the witness and the defendant. The witness was not retained by either side; expressly declined to have anything to do with either. At most, so far as the defendant was concerned, he was in the position of a friend. We think that a case for the application of the rule of privilege was not made out, and the evidence was improperly rejected. It is very clear that it was material. It follows that there must be a new trial. Order reversed, and new trial granted; costs to abide the event.  