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Mahoney v. Mahoney

35 N.Y.S. 1091 Court N.Y.C.P. Decision date 1895-12-02 English

Delivered by GIEGERICH, J.

Contents

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p. 1091
MAHONEY v. MAHONEY.
(Common Pleas of New York City and County, Additional General Term.
December 2, 1895.)

Headnote

Tbiad— Objections to Evidence—Privileged Communications.
An objection to the admission of “any conversation in respect to professional opinion” is not an objection to privileged communications between attorney and client.
Appeal from Seventh district court.
Action by Johanna Mahoney against Emma Mahoney on an alleged agreement of the defendant to pay to plaintiff the sum of $50 per month for and during plaintiff’s life. A judgment in favor of
p. 1092
defendant was rendered by the justice without a jury, and plaintiff appeals. Affirmed.
Argued before Daly, C. J., and GIEGERICH, J.
Moses Weinman, for appellant.
Philip J. Britt, for respondent

A careful perusal of the voluminous record convinces me that the trial justice was right in his conclusion upon the facts, viz. that the defendant’s promise to pay the plaintiff was voluntary, and not founded upon any claim of legal right made by the latter against the former. The only alleged error urged by the appellant for the reversal of the judgment is that the testimony of Mr. Leopold Wallach disclosed professional communications between him and his client, the plaintiff, and was consequently erroneously admitted. The proper ground of objection was, however, not specified upon the trial.. The objection made was to “any conversation in respect to professional opinion,” and in view of the facts and the context this cannot be understood, and could not have been understood by the justice or adverse counsel, as referring to professional communications between attorney and client, but rather to the general incompetency of opinions as evidence; and hence, under well-established rules, it should be disregarded. Mead v. Shea, 92 N. Y. 122 ; Baylies, Trial Prac. p. 202, and cases cited. As we are satisfied, from a careful consideration of the evidence, that the decision of the justice was in all respects correct, the judgment should be affirmed, with costs.

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