Eastman v. Kelly — 16 N.Y. St. Rep. 894

Majority

p. 894

Lydia M. Eastman et al., Resp’ts, v. Daniel Kelly et al., App’lts.

(Supreme Court, General Term, First Department,

Filed June 19, 1888.)

Headnote

1. Evidence—Attorney cannot testify to information gained by him THROUGH PROFESSIONAL RELATIONS.

This action was brought by the plaintiffs as judgment-creditors of one of the defendants, to reach certain interests alleged to be held by him, in property standing in the name of another of the defendants. The attorney for the plaintiff in this action, who had been attorney for each of the defendants, and was for at least two of them at the time of the transactions resulting in the title to the property being taken by the defendant, in whose name it stood, was asked upon the trial whether he had imformation of such a character as to create the belief in his mind that the judgment-debtor was a joint owner of the property, Held, that information acquired by the witness through his professional relations with the defendants would be incompetent and much more so was a statement that he had information of such a character as to create a belief in his mind upon the question at issue.

2. Same—Competency of.

Held, that a question as to whether the witness had not an interest in the recovery in the action was competent for the purpose of impeaching his testimony.

Appeal from judgment entered at special term in favor of the plaintiffs.

Alexander Thain, for app’lts; Henry A. Monfort, for resp’ts.

Without passing upon the merits of the controversy between the parties to this action, it is apparent that the judgment must be reversed, and a new trial ordered, because of the errors in the admission of evidence, which may have influenced the court below in reference to the conclusions arrived at from the evidence.

This action was brought by the plaintiffs as judgment creditors of the defendant Kelly to reach certain interests, which it was claimed the defendant Kelly had in property standing in the name of the defendant, Mary J. Jones.

One James Kearney was the attorney for the plaintiff m this action, and he had been the attorney for each of the defendants, and was the attorney of at least one of them at the time of the transactions which resulted in the taking of the title to this property by the defendant, Mary J. Jones. Upon the trial of this action, this attorney offered himself

p. 895

as a witness to prove what had taken place at the time of the taking of this title, and, among other things, he was asked the following question:

“ Q. Had you information of such a character as to create the belief in your mind that Mr. Kelly was the owner of the property jointly with Charles Jones?”

This question was duly objected to, and the objection overruled, and the witness answered: “Yes, sir.”

This evidence was clearly improper. To have allowed this witness to detail the information which this witness, who seems to have been entirely oblivious to his duties as an attorney, acquired by reason of his professional relations with the defendants, would have been error, but to permit him to state that he had information of such a character as to create a belief in his mind upon the very question at issue, seems to be going many steps beyond.

It is sought to justify this ruling by claiming that it was offered for the purpose of justifying this attorney in signing Mary J. Jones’ name to a paper relating to this property without any authority from her.

It could have no such effect for even if Daniel Kelly had owned the whole of the property, it gave him no power to authorize this attorney to sign the name of Mary J. Jones, and of this fact this attorney must have been well aware.

Another question asked of this witness was as follows:

Q. Are you not interested in the result of this action to the extent of a share of the recovery?

This question was objected to on the part of the plaintiff as asking for a disclosure of the relations between an attorney and client, which objection was sustained and the defendant excepted.

The brazen effrontery of this objection seems to be without parallel.

This witness had brought the action upon the knowledge which he had obtained as counsel for these defendants or some of them; had gone upon the stand and deliberately violated his duty as an attorney and disclosed knowledge which he had acquired as such attorney, and when asked for the purpose of impeaching his evidence as if the facts already disclosed, had not rendered any evidence he might give utterly unreliable, whether he had not an interest in the recovery in the action, the objection is raised that it calls for a disclosure of the relations between an attorney and client.

No comment seems to be necessary upon such a state of facts. They carry upon their face the condemnation with which such conduct should be visited.

The judgment should be reversed and a new trial ordered with costs to the appellant to abide the event.

Daniels and Beady, JJ., concur.