Opinion
July 15, 1907.
George T. Hogg, for the appellants.
Charles Stewart Davison, for the respondent.
The plaintiff, after a trial, recovered a judgment against the defendants for upwards of $34,000. The defendants propose to move for a new trial on the ground of newly-discovered evidence, and they obtained an order, on notice, directing the taking of the deposition of a witness named, to be used on such motion. The order also provided for the production by the witness of a certain letter in his possession, to the end that the defendants might examine and photograph the same. No appeal was taken from such order. A copy of it and a subpœna duces tecum were duly served on the witness, and he appeared as directed before Special Term, Part 11, bringing with him the letter called for. After he had been sworn he was asked to produce the letter and the plaintiff objected to his doing so, and to substantially all the questions concerning it, on the ground that it was a privileged communication — the witness at the time he received it having been its attorney. The objection was sustained, as were also the objections to the questions asked. An order was entered reciting the proceedings and formally sustaining the objections, from which the defendants appeal.
I am of the opinion the order should be reversed. No appeal was taken from the order directing the witness to produce the letter referred to, and if the order appealed from be permitted to stand it would, in effect, reverse that order. The orderly administration of justice does not sanction such practice.
Not only this, but the letter is not, so far as appears, a privileged communication. A letter similar to it, except that it was addressed to another person, was offered in evidence at the trial, where a question arose as to who actually signed it. The letter which the witness has in his possession does not appear to have been a confidential communication and it is only such communications which are privileged. If, therefore, it be assumed that the witness was, at the time he received the letter, the attorney for the plaintiff, it does not appear this letter was sent to him as such attorney and if it were, the burden of showing it was on the plaintiff. It is to the client, and not to the attorney, that the law extends a privilege, and the production by the attorney of any paper which the client might be compelled to produce is not privileged. ( Matter of King v. Ashley, 96 App. Div. 143; affd., 179 N.Y. 281; Jones v. Reilly, 174 id. 97.)
Other objections were made to questions asked, on the ground that the inquiries addressed to the witness were not within the scope of the order, but the order directing the taking of the deposition did not limit its scope and, therefore, the defendants were entitled to a full examination of the witness. (Code Civ. Proc. § 885.) The questions, or some of them, seem to be proper and pertinent to the inquiry, and the objections should have been overruled and the witness allowed to answer. The effect of the proof, of course, can only be determined on the proposed motion, when all of the facts are before the court.
The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, the objections to the production of the letter and the questions overruled, and the witness directed to appear and submit to an examination, and produce the letter in question.
INGRAHAM, CLARKE and HOUGHTON, JJ., concurred; LAMBERT, J., dissented.
Plaintiff recovered a judgment against the defendants for $34,372.63. The defendants desired to move for a new trial upon the ground of newly-discovered evidence. An order was entered May 24, 1907, directing the taking of the deposition of Bainbridge Colby, an attorney, for use on said motion, under the provisions of section 885 of the Code of Civil Procedure. The order provided for the production of a certain letter in the possession of Colby. Upon the latter appearing for the purposes of the order the plaintiff interposed objections to the introduction of the letter and to substantially all of the questions relating to the same, and these objections were sustained. The defendants took exceptions, and this appeal follows. It appears from the record that the letter was a communication from the plaintiff to Mr. Colby, its attorney, in reference to the business affairs of the plaintiff, and this is a confidential communication, which the statute says shall not be disclosed by an attorney. (Code Civ. Proc. § 835; Matter of Whitlock, 51 Hun, 351.) It appears likewise that the letter is merely a duplicate of a letter already in the possession of the defendants, or contained in the evidence, except that the other letter was addressed to an officer of the plaintiff. This does not, however, affect the question of the character of the letter addressed to Mr. Colby in his capacity of attorney, and as this letter would be merely cumulative evidence in the case, it could serve no useful purpose in the motion of the defendants for a new trial on the ground of newly-discovered evidence. Cumulative evidence is not newly-discovered evidence in the sense that that term is understood in motions of this character.
The order sustaining the objections should be affirmed.
Order reversed, with ten dollars costs and disbursements, and witness directed to appear as stated in opinion.