
    Louis Cooperson, Respondent, v. Samuel Pollon, Appellant.
    (Supreme Court, Appellate Term,
    February, 1900.)
    Evidence — Privileged communications — An attorney’s clerk may testify to a matter between a client and a third party, which he saw transacted in the attorney’s office — Code Civ. Pro., § 835.
    Where the main question, in an action, is whether certain iron pipes were sold by the plaintiff to the defendant or whether, as the latter claimed, he was merely acting in the matter as agent for a contractor named Charles Steiber, and it appears that, after the pipes had been delivered, both the plaintiff and the defendant went to an attorney’s office, and that the attorney, in the presence of his clerk and several other persons, drew a mechanic’s lien for the pipes, in favor of the plaintiff, subsequently filed, in which it was stated that the pipes had» been furnished at the request of a contractor named John Hock, the clerk of the attorney may testify to the facts of that transaction in order to rebut the plaintiff’s testimony, that he had never had any acquaintance or dealings with Hock and that the notice of lien was not read to him before he signed it.
    Such a communication would not, under such circumstances, be privileged in the case of the attorney and cannot be in the case of his clerk.
    
      There is no reason for excluding the testimony of an attorney, or that of his clerk, where he, or the clerk, has merely witnessed a business transaction which occurred between the client and a third party.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff, upon a trial had before the court, without a jury. The nature of the action and the facts, so far as material, are stated in the opinion. •
    Abraham B. Schleimer, for appellant.
    S. Feuchtwanger, for respondent.
   Giegerich, J.

The action is to recover an alleged balance for certain plumber’s supplies, consisting of iron pipes, claimed to have been sold and delivered by the plaintiff to the defendant. The pleadings were oral and the answer was a general denial. '

The principal question contested at the trial was whether such goods were sold to the defendant or not; the defendant contending that he merely acted as the agent of one Charles Steiber, in the purchase of the same, and that the latter was the contractor of the building, for which the said pipes were furnished. According to the plaintiff’s testimony the goods in question were purchased by the defendant at the former’s place of business. After receiving a payment on account of the purchase price, the plaintiff rendered to the defendant a bill or statement for the balance, and at the latter’s request delivered the goods at a theatre on Third avenue, Borough of Manhattan. The note of Steiber for such balance was delivered to the plaintiff on the same day, but has never been paid. On cross-examination it was elicited that the plaintiff subsequently filed a mechanic’s lien in the clerk’s office of.the county of New York, which, among other things, states, that one John McCall was the owner of the building for which such pipes were furnished, and that they were so furnished at the request of one John Hock, contractor, by whom the plaintiff was employed. On the redirect-examination the plaidtiff testified that he never had any acquaintance or business transaction whatever with either of the parties last above mentioned, and that the notice of lien was not read to him before he signed the same. A clerk in the office of the attorney who drew such notice, was subsequently called by the defendant who sought to contradict the testimony so given by the plaintiff, by showing what took place at the attorney’s office while the paper-writing was being prepared, and at the time it was verified, but this evidence was excluded upon the plaintiff’s objection that it violated the provisions of the Code of Civil Procedure (§ 835) respecting privileged communications between attorney and client. It appears from the uncontradicted evidence that both parties litigant went together to the attorney’s office, where the plaintiff, in the presence of the defendant and severa) other persons, including the attorney’s said clerk, furnished the attorney with information concerning his claim arising out of the transaction adverted to. Under filíese circumstances the matters so communicated could not in any sense be fairly termed the subject of a confidential communication (1 Greenl. Ev. [15th ed.], § 244), and since the privilege did not apply to the attorney, it equally did not apply to his clerk. Hence the exclusion of the evidence adverted to was, in my opinion, reversible error.

The attorney’s clerk was also asked this question: “ Q. As a matter of fact did you go to Hr. Steiber in the presence of the plaintiff? ” This was objected to upon the same ground upon which the aforesaid evidence was excluded, and the plaintiff excepted to the court’s sustaining such objection. The rule applicable to the question presented by such ruling is laid down by the court in Ooveney v. Tannahill, 1 Hill, 24, in these words (p. 36): “There can be no good reason for excluding the attorney when he has witnessed a transaction in the way of business between his client and a third person; as the adjustment of an account, the execution of a deed, the payment of a sum of money, the giving up of securities, or the like. It is not necessary that a man should have an attorney to witness his dealings with third persons; and if one is called in, I can see no reasons why he, like any other person who was present, should not be sworn to prove what was done.” Applying the foregoing principle to the case at bar, it is clear that the justice erred in excluding the testimony sought by the question so propounded.

The defendant insists that the plaintiff took the promissory note of a third person in payment of the goods in suit, but as such defense has not been pleaded, it is not available. There were other grounds urged for a reversal of the judgment, hut, in view of the conclusion above reached regarding the exclusion of evidence, it will not be necessary to consider them.

The judgment should, therefore, be reversed and a new 'trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and O’Gorman, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  