
    Elizabeth A. Sullivan, as Administratrix, etc., Respondent, v. Annie E. Franzreb, Appellant.
    Second Department,
    January 12, 1912.
    Vendor and purchaser — action to recover purchase money—willingness of vendor to convey — evidence — parol evidence of contract not reduced to writing — written receipt — testimony by attorney at law, when not incompetent.
    A vendee who has made a partial payment of the purchase price of lands to be conveyed to her cannot recover the same in an action for money had and received if the vendor is able and willing to convey, there being no proof that she had a right of election as to whether the money should be applied upon the purchase or be refunded.
    
      A "written receipt stating that the money was in part payment for certain lands to be sold by the vendor does not prevent the parties from giving parol evidence as to the real understanding between them if the whole contract' was not reduced to writing.
    An attorney at law who was summoned to attend an interview between the vendor and vendee and prepared said receipt is not incompetent, under section 835 of the Code of Civil Procedure, to testify as to what took place at the interview.
    Appeal by the defendant, Annie E.- Franzreb, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, rendered on the 23d day of May, 1911.
    
      James Burke, Jr., for the appellant.
    
      Patrick H. Loftus, for the respondent.
   Jenks, P. J.:

The plaintiff declared upon (1) money had and received, and (2) breach of contract. The proof suffices-to show that plaintiff’s intestate paid $250 to the defendant. But the paper read in evidence by the plaintiff is a receipt to her intestate from the defendant for $250, same being partial payment on Lot of Donohue property, being sold by me to said Margaret J. Neville. ’' The testimony of plaintiff’s witness, Mr. Rabinowitz, an attorney at law> as to the interview between the said intestate and the defendant, which resulted in this receipt, does not establish that this money was paid subject to receiving repayment upon demand. His testimony that survived the striking out by defendant’s motion is that the understanding of the principals was that the intestate was to take the land or have return of this money; not that the intestate might at her election have the money applied upon the purchase or have a refund thereof. There was not proof of the breach of any contract.

The version of the defendant is that she received the money on account of the purchase price of the land, which she is now willing and able to convey as she ever has been. Upon the facts as established, the only remedy would rest upon the contract to convey the land or arise out of á breach thereof. The said receipt did not preclude the parties from offering parol testimony as to the understanding between the principals if the whole contract was oral and but part of it reduced to writing. (Eighmie v. Taylor, 98 N. Y. 288; Winter v. Friedman, 111 App. Div. 306; Blair v. Minzesheimer, 124 id. 177.) The testimony of Mr. Babinowitz was not incompetent under section 835 of the Code of Civil Procedure. (Hurlburt v. Hurlburt, 128 N. Y. 420.) The cases cited by the learned counsel for the appellant, while examples of the application of the said statute, are not germane to the case at bar. The testimony of Mr. Babinowitz is that as an attorney at law he was summoned to attend an interview between the plaintiff’s intestate and the defendant; that he did so, took part in the interview and prepared the said receipt. The reason for the rule is to assure secrecy of the professional advice from attorney to client, but when persons consult an attorney upon a matter involving his professional services, the rule does not obtain as to the communications with the attorney incidental, to that matter, and cannot be invoked in litigation which may arise between these parties (Doheny v. Lacy, 168 N. Y. 224), or between their personal representatives (Hurlburt v. Hurlburt, supra).

The judgment must be reversed and a new trial must be ordered, costs to abide the event.

Thomas, Carr, Woodward and Bich, JJ.y concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  