
    Matilda Kitz, Respondent, v. John D. Buckmaster, Appellant.
    
      Communication to an attorney—when not privileged.
    
    In an action to recover damages for an alleged assault it appeared that an attorney, who had been the- plaintiff’s legal adviser, upon being summoned to her lioiise after the alleged assault, telephoned the defendant and upbraided him for his conduct and advised him in a friendly, rather than a professional, way to . leave town .temporarily, in reply to which the defendant made some damaging admissions. The defendant had never employed the attorney, and it did not appear that at the time of the conversation he had any intention of retaining him to defend any suit arising out of the alleged assault.
    
      Meld, that the telephonic communication was not privileged under section 835 of the Code of Civil Procedure, and that the attorney might testify to the declarations and admissions of the defendant made during the course thereof;
    That the objection that the attorney’s testimony was rendered improper by evidence given by the defendant subsequent to its admission, to the effect-that he believed the attorney was acting."as his attorney, was waived by -the defendant’s failure to move to strike out the testimony.
    Appeal oy the defendant, vonn D. BucKmaster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 21st day of January, 1899, upon the verdict of a jury, and also from' an order entered in said clerk’s office on the 3d day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. R. Cobb, for the appellant.
    
      M. E. Driscoll, for the respondent.
   Adams, J.:

The plaintiff brings this action to recover damages .for an assault and battery alleged -to have been committed upon her by the defendant on- the t2d ilay of ílctofcfer, 18.97.

The record before us discloses the usual , conflict of evidence' in cases of this character, much of which, is' entitled to little, if any, consideration, inasmuch as at least one of the principal witnesses on either side unhesitatingly announced her willingness to resort to> falsehood whenever in her judgment circumstances seemed to render it desirable for her to- do so; and the evidence, as a whole, justifies the inference that .the rupture between the parties, whose relations up to the time it occurred had been quite intimate, was the natural product of the immoral atmosphere in which they, as well as some-of their witnesses, were living. However, the jury, after hearing all the evidence, and weighing the same carefully, rendered a verdict favorable to the • plaintiff;..and that verdict, so far as fifis, appeal- is. concerned, must be regardedas conclusive upon every controverted question of fact which the case'presents:’

It is insisted, however, that the judgment and order appealed from should be reversed by reasqn of'error committed by the. learned trial court in the admission of incompetent .evidence, and our attention is directed to several exceptions which are said to present such error. -We have given attention to these various exceptions, and find but one .which requires serious consideration.

Upon the trial Mr. Edward S. Jénney, a prominent.and reputable lawyer residing in the city of Syracuse, was called as a witness for the plaintiff and permitted, over the defendant’s objection, to testify to a telephonic conversation which took place between him and the defendant on the day the alleged assault was committed,, in -the course of which the defendant made certain statements or admissions tending to corroborate, to some extent at least, the plaintiff’s: evidence, and which for that reason - were necessarily prejudicial in their nature.

The contention of the defendant is that any admissions or declarations made to. this witness by him were privileged .and should not have been received as evidence against him; and the question now to be determined is, what force, if any, is there in .this contention %

By section 835 of the (pode of Civil Procedure it is provided that ■“ An attorney or counsellor 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.”

It is thus made plain that within the strict letter of this provision, "before a communication made to a lawyer can be treated as confidential or privileged, it must affirmatively appear that the contractual relation of attorney and client existed, and that the communication was made by the latter "in the course of the professional employment of the former. (Renihan v. Dennin, 303 N. Y. 573; Rosseau v. Bleau, 131 id. 177.)

This statutory provision is founded upon obvious principles of public policy and is designed to enable any and all persons who invoke the aid and advice of lawyers to present their cases freely and fully and with the absolute assurance that the relation between them and their legal advisers shall be treated by the latter as strictly confidential, and that the relation thus established shall remain forever inviolable. The absolute necessity of such a rule as the one just stated is easily seen, for no lawyer can intelligently advise a client in a given case without knowing all the facts which in any manner pertain thereto, and it often happens that, in order to acquaint his adviser with such facts, the client is obliged to divulge secrets which he would not divulge were he not assured that his disclosures were made under a seal of privilege "which could not be removed without his assent; and so important to the client have the courts regarded this rule that they have construed it liberally and with regard to its spirit rather than its letter. Thus it has been held that the principle of exclusion does not depend upon the fact that a fee' was paid or that a suit was either pending or within the contemplation of the parties. It is enough ■ if the communication is made within the course of professional employment; that it relates to the subject-matter of such employment, and has been drawn out by reason of the relation existing between the parties. (Bacon v. Frisbie, 80 N. Y. 394.)

But adopting for the purpose of this review the most liberal construction which the- statute will permit, we are unable to see that the communications made by the defendant "to the witness Jenney should have been excluded. The defendant was not and never had been a client of Mr. Jenney ; lie did not retain him and had, so far as appears, no idea of retaining him to defend him in any prosecution, either civil or criminal, which might jmssibly result from hie alleged assault.. He -did riot even attempt to consult with him or seek his advice. On the contrary, it seems that Mr. Jenney was the legal adviser of the plaintiff; that he was summoned to her house-after the fracas of October second, and that when he learned what had' taken place, he called the defendant up by telephone and. upbraided him for his conduct, whereupon the defendant attempted to exculpate himself, and in so doing made some statements which may be regarded as equivalent to admissions that he had committed an assault upon the plaintiff.

It is true that Mr. Jenney advised the defendant to leave town for a day or two in order to- avoid arrest, but this advice was apparently tendered in "a friendly rather than a professional way; for it appears that Jenney knew the defendant and had, on one or two-occasions, acted as attorney for his mother-in-law,. Mrs. Goan, who, it also appears, had employed the-plaintiff as a female detective to investigate some- affair in Which she was personally interested. The precise nature of the business which had been intrusted to the skillful management of the plaintiff was something which none of the parties appeared anxious to disclose; but whatever it was, it had 'obviously been complicated by the occurrence at the plaintiff’s house at the time the assault in question is alleged to have been committed, and it was doubtless by reason of this fact that Mr. Jenney., as counsel for the plaintiff, or Mrs. Goan, or both of them, took the defendant to task and suggested a temporary sojourn in a neighboring town until the plaintiff could be. placated. However this may be, it was for the court to determine upon these as well as such other facts as appear in the case, whether the relation of .attorney and client existed between Mr. Jenney and the defendant (Bacon v. Frisbie, supra), and we are inclined to think that the conclusion reached in that regard was correct.

The mere fact that a witness happens to be a lawyer does not disqualify him from testifying to conversations had with, or advice .given to, other parties; for such advice may be given in the interest of third parties, or because of a friendly interest in the person to whom it is given. In either case no confidential relation would have been created, and consequently the rule of privilege would have no application. (Haulenbeek v. McGibbon, 60 Hun, 26.)

We are not unmindful of the fact that the defendant testified that lie believed Mr. Jenney was acting as his attorney, but this was not. until after the distasteful evidence had' been received. If this statement on the part of the defendant materially changed the situation, and we do not thin k it did, it became the duty of his counsel to ask that the evidence of Mr. Jenney be stricken out. This he omitted to do, and he must, therefore, be deemed to have waived the right to claim that this particular item of evidence strengthens his.position.

Inasmuch as, in our judgment, no error. Was committed in the reception of the evidence objected to* it follows that the judgment and, order appealed from should be affirmed.

All concurred. „

Judgment and order affirmed, with costs.  