196 A.D. 74 | N.Y. App. Div. | 1921
This judgment might have been affirmed upon the opinion of the learned justice at Special Term except for a point of evidence that has been raised upon the appeal.
The contract for the purchase of the property was made between the plaintiff or his agent and Henry A. Siebrecht, the husband of Emma S. Siebrecht, the owner of the real property. The primary question in the case was the question of the agency of the husband to act for his wife. Upon this point I think the decision of the learned justice rests upon evidence sufficient to sustain it. The contract, although an oral one, was not void, because the letter subscribed by the attorney for defendant which inclosed the proposed written contract satisfied the Statute of Frauds as a note or memorandum in writing. (Real Prop. Law, § 259.) As the owner had made a contract in writing to sell the property to a third person, the court was justified in denying specific performance
During the pendency of the action the vendor, Mrs. Siebrecht, died. Her husband, Henry A. Siebrecht, as executor of her last will and testament, was substituted as defendant. He was the agent through whom the original contract for the sale of the land was made. Prior to the death of his wife, and after the beginning of this action, he had written a letter to the attorney of record for the defendant, which letter was offered in evidence by the plaintiff after Siebrecht had testified as a witness, and admitted over the general objection made by defendant’s counsel to its relevancy, competency and materiality. It is now claimed that this letter was a- privileged communication. It is undoubtedly the law that a communication by a party to his attorney to aid him in conducting the litigation is privileged. The rule is not an arbitrary one but is essential to the proper administration of justice, and section 835 of the Code of Civil Procedure, which codifies it, is a re-enactment of the common-law rule upon the subject. (Matter of King v. Ashley, 179 N. Y. 281.) A communication by letter is privileged as much as an oral communication directly between the attorney and the client. The privilege also extends to a communication made by an agent, and to a letter written to the attorney by one who was the agent of the client for that purpose. (State v. Loponio, 85 N. J. L. 357; Anderson v. Bank of British Columbia, L. It. 2 Ch. Div. 644.)
At the time this letter was written Siebrecht was not a defendant in the action; for it was written during the lifetime of his wife. But to bring the letter within the rule of privileged communications, it must be shown that he was the agent of his wife for the purpose of writing the letter. The mere fact that he was her husband is not sufficient, nor is the fact that he acted as her agent in making the sale of the property. It must be shown that this letter was authorized by the then defendant in the action and was practically her communication to the attorney. This fact, which it lay within the province of the court to decide, is not established
It is well established that an admission made by a party, like an executor or a trustee, before he has been clothed with the office, is not competent against him after his appointment. (1 Greenl. Ev. [15th ed.] § 179; Niskern v. Haydock, 23 App. Div. 175; Church v. Howard, 79 N. Y. 415.) It follows that the letter was not evidence relevant directly to the issues as an admission by defendant.
But the present defendant had been examined and cross-examined before this letter was introduced in evidence. He had testified, in answer to questions by his counsel, that he was not authorized to make the sale at the price alleged to have been agreed upon. This letter, however, contained the sentence, “ I told him [i. e., Wood, plaintiff’s agent] that Mrs. Siebrecht would agree to sell him the property for the price he had offered.” It also contained the sentence: “I told that party [i. e., the party with whom the contract of sale was subsequently made] that I had agreed some days ago to sell it to a man, and that I would give him (that man) another day, but that if I did not hear from him by the next day at noon (Saturday) that I would sell it to his client.” The letter was, therefore, evidence by way of impeaching the testimony of Siebrecht. As the letter was not privileged and was relevant as impeaching evidence, it was not error to receive it.
The judgment should be affirmed, without costs.
Jenks, P. J., Rich and Jaycox, JJ., concur; Putnam, J., concurs in the result.
Judgment affirmed, without costs.