96 N.Y. 222 | NY | 1884
We think there was error in the denial by the referee of the motion of the defendants to strike out the testimony of Mr. Perkins. It was a material question on the trial whether the note in suit had been transferred by Milo W. Hill to Loveridge, the plaintiff, as security for the costs in the mortgage suit, as claimed by her, or to Mr. Loveridge, her husband, *225 as indemnity against his liability as bail in certain contempt proceedings, as claimed by Hill. Upon this issue Milo W. Hill was a witness for the defendants, and testified that the note was transferred to Mr. Loveridge to secure him as bail. The plaintiff upon this issue subsequently called Mr. Perkins, an attorney, who after stating that he was counsel for Mrs. Loveridge in the suit against her and Milo W. Hill to set aside the mortgage, and had been counsel for Milo W. Hill in various suits, and remembered the appeal in the mortgage suit, testified: "I heard Milo W. Hill say that he had secured or satisfied the Loveridges against costs," referring, as the context shows, to the costs in the mortgage litigation.
The witness was then cross-examined by the counsel for the defendants, and testified that he recollected the contempt proceedings, and had heard that bail was given, and said: "I am pretty confident that I have heard that the bail was not given in the contempt proceedings, but was given in the (mortgage) suit. All I know about it is what I have heard as counsel in the matter." He was then re-examined by the plaintiff's counsel, and testified: "I don't think after December, 1869, until June 2, 1870, that I had any thing to do with the Hill's matter only arguing an appeal." He was then again cross-examined, and testified that he was retained after the term commenced, to argue both appeals, i.e., the appeals in the contempt proceedings and in the mortgage case, and added, "whatever I have sworn to in this case as coming from Dr. Hill was learned by me as counsel."
The defendants' counsel then asked the referee to strike out the evidence of the witness upon the subject, "upon the ground that he simply testified to matters which came to his knowledge as counsel, and the same was privileged." The plaintiff objected generally. The referee denied the motion, and the defendants' counsel excepted. It is clear that the witness was debarred from testifying to the declaration of Hill, by the rule which forbids an attorney from disclosing communications made to him by a client in the course of his professional employment. *226
(Bacon v. Frisbie,
But the ruling of the referee was sustained by the General Term on the ground that the "evidence was not objected to until after it had been taken. The motion to strike out was, therefore, too late." We think the rule which requires a party to object to incompetent evidence when offered, and which precludes him from waiting until he can see, after the evidence is in, whether it is damaging or not before taking his ground, was misapplied in this case. It did not appear when the objectionable evidence was given that the declaration testified to by Mr. Perkins was made to him as counsel for Hill, or while the relation of attorney and counsel existed between them. This testimony followed the statement that the witness was counsel for Mrs. Loveridge in the suit against her and Hill. The declaration related to that matter, and as the case stood when the declaration was proved, it was not an unreasonable inference that it was made to the witness as counsel for Mrs. Loveridge. It is true the witness testified that he had been counsel for Hill in various suits, but when that relation commenced, or whether it existed when the declaration was made, did not appear. This was first disclosed on the cross-examination, and the motion to strike out followed immediately upon the disclosure. The most that can be claimed is that the evidence on the direct examination might have suggested to counsel a quære as to the existence of the relation at that time, and whether the communication was privileged. But it would be too strict to hold that a party is bound to interrupt the examination of a witness in respect to a material matter on a mere suspicion that the witness may be debarred by his position from testifying. He may, we think, await his opportunity on cross-examination to bring out the facts, and, if on such examination it appears that the witness is incompetent, make his motion to have the testimony expunged from the record. (Hinckley v. N.Y.C. H.R.R.R. Co.,
We think the motion to strike out should have been granted, *227 and as the error cannot be said to have been innoxious we feel compelled to reverse the judgment.
All concur.
Judgment reversed.