Opinion
February 8, 1950.
Action by Isadore Matison against Sallie Matison, wherein plaintiff moved to set aside jury's verdict as contrary to law and the evidence. Trial Term, Nathan, J., held that testimony of defendant's former attorney as to defendant's consultation with him in regard to transaction at issue was properly excluded as a privileged communication.
Motion denied.
J. G. L. Molloy, New York City, for plaintiff (Arthur P. McNulty, New York City, of counsel).
Hartman, Sheridan Tekulsky, New York City, for defendant (Sol Tekulsky and Louis Flato, New York City, of counsel).
Plaintiff's motion to set aside the jury's verdict as contrary to law and contrary to the evidence, is denied. The testimony of defendant's former attorney as to defendant's consultation with him in regard to the transaction at issue was objected to and excluded as a privileged communication. Plaintiff contends, however, that the privilege had been waived by reason of the fact that the attorney had testified as to the consultation in a City Court action in Brooklyn brought by him against this defendant to recover for professional services rendered; and contends further that the privilege once waived, is waived forever.
Section 353 of the Civil Practice Act provides that an attorney shall not be allowed to disclose a communication made by his client to him in the course of his professional employment. Section 354 of the Civil Practice Act provides that the previous section shall apply unless the provisions thereof are expressly waived upon the trial or examination by the client. Upon this trial there was no express waiver, but rather an affirmative assertion of the privilege.
While it has been held in some instances that assertion of the privilege is to no avail where the privilege has been waived in prior or other proceedings, the circumstances of this case cannot justify departure from the plain provisions of section 354 of the Civil Practice Act. To hold otherwise would impose upon a client unable or unwilling to pay his lawyer the penalty of loss of his right to keep his communication confidential and privileged. Such a result would not only be grossly unjust, but would be seriously detrimental to the lawyer-client relationship.
Although the court, if sitting without a jury, might have found otherwise, the verdict cannot be held contrary to the evidence, particularly in view of plaintiff's testimony with respect to the circumstances of the transaction.
Plaintiff may have appropriate exceptions and sixty days to make a case.