Majority
p. 180John M. Lifschitz and David Seid, Appellants, Respondents, v. James D. O’Brien, Respondent. Frederic S. Marsell and Abraham C. Sherman, Appellants. Second Department, February 24, 1911.
Headnote
Witness — attorney and client — privilege — employment to procure loanAn attorney employed solely to procure a loan for a client acts merely as agent and communications between them in regard to the loan are not privileged. This is so, although the attorney had represented the client professionally in other transactions.
Appeals by the plaintiffs, John M. Lifschitz and another, and by Frederic S. Marsell and another, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, rendered on the 22d day of September, 1910, in favor of the plaintiffs against Marsell and Sherman, and in favor of the defendant O’Brien against, the plaintiffs; also from orders denying motions for a new trial.
Marshall Snyder, for the plaintiffs, appellants.
Frederic S. Marsell and Abraham G. Sherman, for the defendants, appellants.
Andrew C. Morgan, for the respondents.
The judgment in this case must be reversed for errors of the trial judge in excluding testimony sought to be elicited from the witness Marsell respecting conversations had by him with the defendant O’Brien in reference to procuring a loan upon the premises referred to in the complaint herein. While Marsell was an attorney and
p. 181
counselor at law and it would appear had represented the defendant O’Brien in certain transactions, his employment, so far as it related to procuring a loan for him from plaintiffs, was not as an attorney and counselor at law, but merely as an agent, and the communications had between them did not relate to professional employment. (Code Civ. Proc. § 835; Avery v. Lee, 117 App. Div. 244 .) The conversations between these parties, if any such existed, were of vital importance in establishing the relation of principal and agent between O’Brien and Marsell, which relation it was necessary for plaintiff to establish in order to maintain this action against O’Brien. The error of the trial judge is emphasized in this case because he permitted the defendant O’Brien to deny that he had any conversation with the witness Marsell upon the subject, although that denial was somewhat qualified on cross-examination, while at the same time he refused to permit Marsell to testify to the fact of such conversations or the substance thereof.
The judgment and order of the Municipal Court should be reversed and a new trial ordered as to all of the appellants, costs to abide the event.
Jenks, P. J., Cabe, Woodwabd and High, JJ., concurred.
Judgment and order of the Municipal Court reversed and a new trial ordered as to all of the appellants, costs to abide the event.
Cases cited
- Avery v. Lee 117 App. Div. 244 p. 181