Bankers' Money Order Ass'n v. Nachod

McLaughlin, J.: 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. Mo appeal was taken from such order. A copy of it and á subpoena 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 lie 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 he reversed. Mo 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. ’ Mot 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 á 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 recéiv-ed 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 [734] 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 tliez 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 disburse'ments, the objections to the production of the letter and the questions overruled, and the witness directed to appear and submit to an examinátion, and produce the letter ,in question. • Ingraham, Clarke and Houghton, JJ., concurred; Lambert, J., dissented.