
    CARNES against PLATT.
    
      New York Superior Court;
    
    
      General Term, November, 1873.
    Exceptions.—New Trial. —Delivery oe Deed.— Privileged Communications1.—Attorney and Client.
    Although on appeal from an order denying a new trial, asked solely on the judge’s minutes, the appellant cannot insist that the verdict is against the weight of evidence, yet where appeal is taken not only from the judgment, but also from the order made on a subsequent motion, founded on a case or exceptions, the court should examine the evidence to ascertain if it supports the verdict.
    
      It seems, that the objection that the verdict is against the weight of evidence is not waived by omitting to ask that a verdict be directed, where the party subsequently moves for a new trial on a case and exceptions.
    The decision in this case, reported in 1 Sweeny, 145, explained, and the report corrected.
    The rule that confidential communications between attorney and client are privileged applies, although the communications do not relate to litigation; and it extends equally to both parties.
    Where a fact is immaterial unless connection with a party is proved, an offer to prove the fact, and subsequently to give proof of such connection, may be refused, in the discretion of the court.
    William R. Carnes was the plaintiff in this action, having been substituted for Arthur B. Carnes, deceased. George W. Platt and John L. Griffin were defendants. The facts are fully stated in our report of the previous decision, in volume 7 of this series, page 42. That decision was reversed by the court of appeals (see 2 Abb. Ct. App. Dec., 159, note).
    The plaintiff recovered a judgment awarding him an estate for life in the premises described in the complaint, with a right to the present possession.
    Defendant appealed.
    
      James C. Carter, for the appellant.
    
      Daniel T. Walden, for the respondent.
   .By the Court.—Freedman—J.

This is the third time that this case comes before the .general term of this court. On each of the two former occasions (6 Robt., 270, and 1 Sweeny, 140), it was held that the facts of the case, as disclosed by the evidence, were not sufficient to establish that Houghton, delivered the deed in question to Wetmore, for the use of Anthony, absoltítely, and with intent to pass the title to Anthony prior to August 10, 1854, the date of the record of the judgment of the Merchants’ Bank of Boston against Houghton, and that Wetmore so received it; and that consequently there was, as matter of law, no absolute delivery and acceptance before that day. The court of appeals, however, decided that it was for the jury to determine these questions, as questions of fact, in view of all the circumstances surrounding the transaction. On the third trial this was done, and the jury, under a charge which was quite favorable to the defendant, determined these questions in favor of the plaintiff. And although some other questions were formally presented by a motion to dismiss the complaint, yet the point that the evidence authorized no other verdict than a verdict for the defendant, was raised neither by that motion nor by a request for the direction of a verdict. The defendant throughout the trial treated the case as one that could be determined only by the jury, and having done so, if his motion for a new trial had been made solely on the judge’s minutes, he would not, in the absence of error, be entitled to argue now that the verdict is against the weight of evidence (Rowe v. Stevens, 12 Abb. Pr. N. S., 389). But as the motion appears to have been subsequently made on a case and exceptions, and the appeal is from the order of the special term denying such motion, as well as from the judgment, it may be questioned whether, under the provisions of the Code, it is not the duty of the general term to examine the evidence for the purpose of ascertaining whether the verdict should stand. I have therefore made such examination, but have been unable to find anything in said evidence that under the law applicable to the case, as finally settled by the court of appeals, would warrant a disturbance of the verdict.

The counsel for the defendant requested the court below to submit to the jury, as a question for them, whether the assignment of the judgment to Martha B. Carnes was procured by Charles W. Houghton, and for his benefit, without any intention to retain a lien or security on the judgment for the money advanced to obtain .the assignment. The court refused to submit this question to the jury, and to such refusal defendant’s counsel duly excepted. The law applicable to this branch of the case must, for the purposes of this-appeal at least, be deemed to have been laid down in the opinion delivered by Mr. Justice Moitele, on the second appeal. This opinion was the opinion of the court on that occasion, and not a mere concurring opinion, as erroneously reported in 1 Sweeny, 145. The same request was substantially made in that case, and the question now presented was therefore neces- ’ sarily involved in the decision enunciated. The law as there laid down, stands unreversed to this day, and must for that reason still control. It is true, the evidence given on the present trial, so far as it relates to the request now under consideration, was more voluminous than that given on the preceding trial. But when tested by the rules laid down in the opinion of Mr. Justice Moneel, above referred to, it was in legal effect no stronger than on the preceding occasion, and consequently the request for its submission to the jury was properly denied.

The offer of the defendant to prove by the witness Bitch, that he was originally employed by Charles W. Houghton in relation to enforcing this judgment against the property described in the complaint, and in consequence of advice from the witness, arrangement was made between Charles W. Houghton, and Mr. Carnes, that Mr. Carnes should procure an assignment of the judgment in his own name, or that of some third person, and that the subsequent proceedings,' in order to enforce the judgment, should be had under the direction of such assignee, was properly excluded for the reasons: 1. That because, so far as it went, it was insufficient to establish a defense ; and, 2. Because it called for the disclosure of confidential communications that had passed between an attorney and his client. It has long been settled, as was pointed out by Wigram, V. C., in Walsingham v. Goodricke, 3 Hare, 124, that communications between solicitor and client made pending litigation, and with reference to such litigation; or made before litigation, but in contemplation of and with reference to litigation which was expected and afterwards arose; or made after the dispute between the parties followed by litigation, but not in contemplation of or with reference to such litigation, are privileged from disclosure, whether the party interrogated be the solicitor or the client. It has also been settled that professional communications between a party and his professional adviser, although they do not relate to any litigation either commenced or anticipated, are privileged where the solicitor is the party interrogated. This privilege now extends equally to both parties (Minet v. Morgan, 21 W. R., 467; L. R., 8 Ch., 361; Williams v. Fitch, 18 N. Y., 546, 550; Britton v. Lorenz, 45 N. Y., 51, 59).

The renewal of the last offer, with the addition that the offered proof was to be confined to what occurred between the witness and Houghton, and that it was to be connected subsequently with proof that Mr. Carnes was made cognizant of the arrangement—not by this witness—and assented to it, and came into it, was also properly rejected. It was open to the same objections as the first offer, and to the additional one that the proposed evidence was clearly not competent, unless the plaintiff was connected with it. The refusal to receive it before such connection was made was a matter resting-in the discretion of the court, and therefore not the subject of an exception.

The remaining exceptions appear to be equally untenable.

The judgment and order appealed from should be severally affirmed, with costs.

Barboub, Ch. J., and Monell, J., concurred.  