In re Malcom

113 N.Y.S. 666 | N.Y. App. Div. | 1908

Clarke, J.:

The plaintiff is the committee of the person and property of Louisa Malcom Stenton, an incompetent person. He began a suit, Malcom, v. Gibson et al., in which two women, Brewster and Stewart, were named as defendants. Before this action was instituted Mrs. Stenton, who had not then been adjudged incompetent, had begun an action against some of the same defendants. That suit was entitled Stenton v. Gibson, and in January or February, 1907, an application upon behalf of Nellie Brewster was made by an attorney, Mr. Mortimer E. Joiner, for leave to intervene in that case, and the motion was granted; but the answer was never served, as Mrs. Stenton’s attorney refused to accept service of further papers in the action because of the adjudication of incompetency and nothing further was ever done. The City Beal Estate Company then began an action for the foreclosure of a $45,000 mortgage, and at its attorney’s request Mr. Joiner appeared for Stewart and Brewster, defendants in that action, having been authorized so to do; but as neither of them had any further interest in the property they defaulted. During October, 1907,. counsel for plaintiff in Malcom v. Gibson wrote and telephoned Mr. Joiner asking the addresses of Stewart and Brewster. Mr. Joiner told counsel that he did not have their addresses and could not give them. Thereafter an order was made appointing a referee to take the deposition of Joiner for use upon amotion to be made in that action to take the deposition of defendants Stewart and Brewster. Thereafter several proceedings were had, motions to set aside said order, to modify it and limit the scope of the examination. The result was generally to support Joiner in his claim that as the former attorney of these parties his examination must be limited, otherwise the Code provisions protecting communications between client and counsel would be violated. The reference finally proceeded and as a result Joiner testified, as he had notified counsel at the beginning, that he did not know the addresses of the two women, never had known them, and, therefore, could not give them.

Thereafter a motion was made to charge him with the expenses of the reference, which motion was granted to the extent of requiring him to pay $250. The authority relied upon for this order is Baur v. Betz (1 How. Pr. [N. S.] 344), where an attorney who had been required to give the address of his client in an action in which he was then representing him, had willfully and knowingly given a false address. In the matter at bar it will be observed that these defendants had neither been served nor had appeared in the action, and that Joiner had not appeared for them and had not been authorized so to appear. He was not, therefore, an attorney in the case in any way, shape, manner or form. The court has power to compel an attorney to disclose the name and residence of his client or alleged client. (Corbett v. Gibson, 18 Hun, 49; The Ninety-nine Plaintiffs v. Vanderbilt, 4 Duer, 632; Corbett v. De Comeau, 45 N. Y. Super. Ct. 637; Post v. Schneider, 13 N. Y. Supp. 396.) But even in these cases, where a penalty has been granted by the court, it has always been against the party to the action by stay of proceedings or by striking out his plea, if a defendant, except where the attorney in his employment as attorney has been guilty of deceit, which presents an entirely different question.

This power to compel disclosure, however, would seem to have been confined to the action or proceeding in which the attorney purports to represent the client. “ There is no doubt as to the authority of the court to direct a plaintiffs attorney to disclose his client’s address, but the power should be exercised during the pendency of the action and while the relation of attorney and client actually exists. * * * The relation of attorney and client has ceased so far as this action is concerned, but the seal of confidence imposed by the original relation continues, and the attorney cannot now be compelled to disclose his late client’s address for the mere purpose of enabling the defendant to pursue him aggressively by new proceedings founded in the judgment.” (Walton v. Fairchild, 4 N. Y. Supp. 552.) In Matter of Shawmut Mining Co. (94 App. Div. 156) it was held that an attorney need not, on his examination in an action in which he is not acting as attorney, disclose even the names of the clients for whom he acted in a certain transaction connected with the litigation. Said Mr. Justice Hiscock: “We feel sure that'under such conditions no case has ever yet gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his .retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client.”

But the order for the examination of the attorney not having been appealed from, is not before ns. We cite these cases to emphasize the fact that the examination of Mr. Joiner was not as an attorney in the case, but simply as-a witness, and he was subject to the same control as any other witness, to the same punishment for contumacy as any other witness, and to no other. For willful refusal to answer material questions, he might have been proceeded against as for a contempt of court as in the case of any other witness. This is not such a proceeding. When the order was modified to confine his examination to the question of the residence of Brown and Stewart, he answered fully. What the order appealed from compels him to do is, as a witness, to pay the expenses of the reference to examine him as a witness. This is a novel procedure. The court has in proper proceedings jurisdiction over its officers qua officers. But the mere fact that a man is an attorney does not give jurisdiction to summarily proceed against him for all manner of matters. “ This summary authority over attorneys given by the common law and conferred by statute is limited to their professional relations with clients, and does not extend to transactions of a business nature such as might be performed by an agent who is not an attorney or counselor.” . (Matter of Ney Co., 114 App. Div. 467.)

This order should be reversed, with ten dollars costs and disbursements to the appellant, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.