
    Oscar Smith, App’lt, v. Russell Crego, Impleaded, etc., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 21, 1889.)
    
    1. Evidence — Charge.
    In an action on a promissory note where the defense was that it was given to compound a felony, the evidence was conflicting on that point. The magistrate’s minutes, including a statement that the prosecuting attorney stated that all money due to the complainant had been refunded, was admitted under objection. Held, that while the minutes were admissible, the statement was no evidence against the plaintiff of an agreement to compound a felony, and that the latter was entitled to an instruction that he was not to be prejudiced thereby.
    3. Same — Privileged communications — Waiver.
    A client may waive the privilege conferred by § 835 of the Code, and does waive it by calling his attorney to testify to the conversation.
    S. Same — Privileged communications.
    Communications to an attorney are not privileged when both' parties were present.
    4. Same — Explanation op letters.
    A letter written some time after the transaction in question stating what had subsequently been done, and which is relied upon as a mere admission, may be explained.
    5. Promissory notes — Compounding felony.
    A father may rightfully give his note to restore to the wronged party moneys taken by his son in the hope that the burden thus assumed by him will he a sufficient punishment for the crime, so long as there is no actual agreement to compound.
    Appeal from a judgment entered upon a verdict rendered at the Albany circuit in favor of the defendant and from an order denying a motion for a new trial on the minutes..
    
      Marie Cohn, for app’lt; Norton Chase, for resp’t.
   Learned, P. J.

This action is on a note made by Dwight L. Crego and indorsed by Russell Crego. The defense is that it was given on an agreement to compound a felony.

Dwight L. had been in the employment of the Wheeler & Wilson Manufacturing Company, and had been charged with embezzling money. He had been arrested, and was still under arrest, when the note was given. On-the defense above stated, the testimony of the plaintiff and that of the defendant are in conflict.

The defendant offered in evidence the minutes of the magistrate with the affidavit and warrant. The plaintiff objected to a part of the minutes as follows: “Prosecuting attorney stated that all money due the company had been refunded, and the proseentian paying expenses the court admitted defendant to bail in $500.'”

At the close of the case, the plaintiff requested the court to -charge that the plaintiff is not to be prejudiced, or the jury infer there was such agreement or understanding, from the statement in the minutes of the justice that the prosecuting attorney stated, etc. The court, in reply, said to the jury: “You are to take into account all that was received before you, and give it such weight as, in your judgment, it is entitled to.” The defendant excepted.

Now the minutes of the justice were admissible, and, therefore, this statement was before the jury; but it was merely the statement of the magistrate of what was said by the prosecuting attorney. It was no evidence against the plaintiff of any agreement or understanding as to compounding the felony, yet the jury might, under this instruction, have understood that this statement of the magistrate had some weight in supporting the defense. We think that the plaintiff was entitled to have the jury instructed as he requested.

The defendant says that the statement was harmless, because the money was .refunded in fact. But the manner in which this statement is made in the minutes seems to indicate that it was inserted as a reason for putting the bail at a small amount, and thus to afford some evidence that there was an agreement to compound the felony.

The defendant, in support of his defense, testified that he and one Storah, an agent of the company, went to the law office, and papers were drawn up; that law office was the office of Mr. Thompson, who, as the defendant testifies, was plaintiff’s lawyer. The plaintiff then called Mr. Thompson, who testified that he was present when the note was executed, and that plaintiff and Storah and defendant Bussell were present at his office before the execution of the note. He was then asked by the plaintiff to state the conversation which then took place. This was objected to, under § 835 of the Code, and was excluded, to which the plaintiff excepted. Now, Thompson was not attorney for Russell Crego or for Dwight L. Crego. He was plaintiff’s attorney, or, as is said in one place, the company’s attorney, which was practically the same tiring. As he was Smith’s attorney, Smith could waive the privilege. § 836. And he did waive it by calling on Thompson to testify to the conversation. In re Coleman, 111 N. Y., 220; 19 N. Y. State Rep., 501.

Furthermore, both parties to the agreement were present at the conversation. And, under the common law rule as to privilege, communications to an attorney were not confidential when both parties were present. Whiting v. Barney, 30 N. Y., 330; Britton v. Lorenz, 45 id., 51.

Section 836, though it does not use the word confidential, is intended to be only a statement of the common law rule. See note to the section. So far, then, as appears in this case, it seems to us that Thompson should have been allowed to testify to the conversation inquired about.

About four months after the execution of the note, a letter was-written by plaintiff to defendant, containing the words: I went to Schenectady, yesterday morning, and arranged through the district attorney to drop Dwight’s case.

The plaintiff testified that he did not arrange with the district, attorney to drop the case that was then pending. He was then asked: Explain what the language (above quoted) refers to ?” This was objected to and excluded. The plaintiff excepted. And the learned justice, in his charge, commenting on this letter, said that the law prevented the plaintiff from stating what he intended by the letter; that the law presumed that he' intended what the letter imprints on its face.

Now this rule would be quite correct, if applied to a written contract, or to a writing on which another party had relied in his action. But this letter was a mere admission; not any more binding because it was in writing. Whatever contract the parties entered into had been made long before. And this letter was only a statement of what plaintiff had subsequently done. He might disprove the truth of the statement. He might, if the fact were so, show to what his words referred. Suppose (merely to illustrate) that Dwight ” referred to some person other than Dwight L. Crego, the plaintiff could have shown this. We think, then, that the witness should have been allowed to answer the question.

It is plain, in this case, that the note was given principally to settle a large part of the moneys which Dwight L. Orego owed the company. It was right that he should pay or secure these moneys, and it was proper that his father should assist him in restoring to the company what he had taken from it. And the father might rightfully do tins in the hope that the burden which would thus fall on an innocent man would be a sufficient punishment for the crime. Hatch v. Collins, 34 Hun, 314. Of course an actual agreement to compound must not be made; but full compensation to the wronged party is a duty, and is not illegal.

In the conflict of evidence in this case, where the plaintiff fully denies the alleged agreement, the exclusion of any proper evidence bearing on the merits is especially material; and may have, operated to defeat the plaintiff’s claim.

, We are therefore of opinion that the judgment should be reversed and a new trial granted, costs to abide the event.

Landon, J., concurs.  