10 N.Y.S. 210 | N.Y. Sup. Ct. | 1890
Appeal from the judgment of the Montgomery county court reversing a judgment of a justice of the peace. The action was for money had and received by defendant for the plaintiff. The answer was a' denial, and a further allegation that all the money received by defendant for plaintiff was paid out by defendant at plaintiff’s request, on Ills liabilities. On the trial the plaintiff introduced evidence tending to show that the defendant had harvested and sold hay from lands of which the plaintiff, defendant, and others were tenants in common, and that all the proceeds of the hay the defendant had paid out in taxes on the common property, and insurance on the hay, except 16 cents. The plaintiff contested the defendant’s authority to pay the taxes, on the ground that she had not authorized such payment. To prove authority in fact from plaintiff to defendant, the defendant called one L. A. Stevens, who was an attorney at law; was doing some of plaintiff’s business in the settlement and management of this joint estate. The defendant then asked the witness, in various forms, if plaintiff had directed him to tell defendant to pay the taxes out of the proceeds of this hay. This was objected to by the plaintiff, on the ground that it was privileged; and the objection was sustained, and the answer excluded. The justice rendered judgment in favor of the plaintiff and against the defendant for $18.57, and costs. The county court reversed that judgment, and from the judgment entered upon such reversal the plaintiff appeals to this court.
Whether the defendant was authorized to pay the taxes on this common property out of the share of the proceeds of the hay belonging to the plaintiff was a material question in this case, and, as the testimony offered bore directly upon that point, if competent, its exclusion was error for which the county court properly reversed the judgment of the justice. The rule at common law was well settled that confidential communications, made to an attorney by a client, relating to a matter in which he was employed or acting as attorney, were privileged, and could not be given in evidence. The substance of this rule was that ail communications made by a client to his counsel for the purpose of professional advice or assistance are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper