Hurlburt v. Hurlburt — 18 N.Y. St. Rep. 407

Majority

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Lyman F. Hurlburt et al., as Administrators, etc., of Charles Hurlburt, Deceased, v. Ella Hurlburt, as Administratrix, etc., of Theron Hurlburt, Deceased,

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1888.)

Headnote

1. Evidence—Statement to attorney in presence op other party not privileged—Code Civ. Pro,, § 835.

Whilst the communications which a client makes to his legal adviser for the purpose of professional aid or advice are privileged under Code Oiv Pro., § 835, the joint statements made by the parties in the presence and hearing of each other, to an attorney, are not privileged.

2, Same—Death of parties does not render it incompetent under Code Civ. Pro., §829.

The fact that these parties are now dead, and that this action is now

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maintained by their personal representatives, does not change the question as to the admissibility of the evidence-

3. Same—What material.

This action was brought to recover a sum of money which it is claimed Charles Hurlburt, in his life-time placed in the hands of his son Theron, as his agent and for his convenience. The defense was that the money was a gift from the father to his son Held, that the declarations of Charles Hurlburt, in reference to the disposition that he wished to make in reference to his farm, and those tending to show the relation existing between the parties and his feeling toward his son and his family, were material

4. Same—Competency op

For the purpose of showing the obligation the father was under to the son it was competent to show the care the said wife took of her mother-in law during her sickness

Motion for a new trial by the plaintiff, on exceptions ordered to be heard in the general term in the first instance.

Charles McLouth and John H. Camp, for pl’ff; S. N. Sawyer, and S. B. McIntyre, for def’t.

This action was to recover the sum of $6,682.10, which it is claimed Charles Hurlburt, in his life-time, placed in the hands of his son, Thereon, as his agent, and for his convenience. The defense was that the money was a gift from the father to his son. The evidence taken upon the trial raised a question of fact upon this issue, which was submitted to the jury, and, inasmuch as this motion only brings up for review the exceptions taken, the verdict must be regarded as a final determination of that issue.

It is contended, in the first place, that the testimony of David S. Aldrich, an attorney, was immaterial and privileged. It appears that on one occasion Charles Hurlburt and his son Theron went to Mr. Aldrich and advised with him as to the manner in which Charles Hurlburt could divide his farm between his sons, as to whether it would be advisable to do it by deed or will. The evidence had but a slight bearing upon the issue and was not very material. We do not, however, regard it so immaterial as to make the exception to its admission unavailable on the motion for a new trial, for it tended to show, in some measure, the relation existing between Charles Hulbert and his sons, and to some extent disclosed the intention of the father in the disposition of his estate. Whilst the communications which a client makes to his legal adviser, for the purpose of professional aid or advice, is privileged under the provisions of the Code, the joint statements made by the parties in the presence and hearing of each other to an attorney, are not privileged. If Charles and Theron were both alive and Charles was maintaining this action against his son Theron to recover hack the money in controversy, he could

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not exclude the testimony of Aldrich upon the ground that the statements made to him were confidential, and for the purpose of professional advice, for the reason that the statements were made in the presence and hearing of the other party to the action, and were consequently not confidential or privileged. The fact that these parties are now dead and that this action is now maintained by their personal representatives, does not change the question as to the admissibility of the evidence. This question has been already twice considered in this court in the cases of Sherman v. Scott, 27 Hun, 331 -334; and Rosenburg v. Rosenburg, 40 Hun, 91 -100. These cases are in accord with those of Whiting v. Barney, 30 N. Y., 330 ; Hebbard v. Haughian, 70 N. Y., 54 ; and Root v. Wright, 84 N. Y., 72 -76.

In the second place it was claimed that it is error to admit the declarations of the plaintiff’s intestate as to the disposition that he had made of his money, etc. There were many exceptions taken to this class of evidence, which we shall consider together. It is conceded that the admissions of the plaintiff’s intestate are admissible in evidence on behalf of the adverse party, if they are material to the issue, or if the circumstances admitted are of such a character that they would have a just bearing upon the case. The class of evidence objected to were the declarations in reference to the disposition that he wished to make in reference to bis' farm; that Theron wished it divided evenly between his brothers; that he did not wish to take a deed himself or to wrong his brothers, that Theron and his wife were coming home to live after the death of Charles’ wife; that he should pay them well for it; that he applauded Ella, Theron’s wife, and stated that he fairly worshiped their little one, his grandchild, etc. It is true that these declarations had but a slight bearing upon the question as to whether he gave his son the money in controversy, but they do tend to show the relation existing between the parties, his feeling toward his son and his family, his intention to pay them for their services rendered, etc., which have a bearing upon the question of whether or not there was a gift. If the father and son had had trouble, and were estranged from each other so as not to be on speaking terms, can there be any doubt but that these facts could be shown as bearing upon the probability of a gift, and if so, may not the reverse be proved?

In the third place, exception was taken to the admission of the testimony of the defendant, Ella Hurlburt, to the effect that she took care of her mother-in-law during her sickness, did the work and was up night and day a good deal of the time, and that she was paid nothing for such

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service. The only effect of this evidence was to show the obligation that the father was under to his son Theron and his family; that he had recognized these obligations in the gift that he had made. And under this theory, we think the evidence was competent. Other exceptions were taken to the admission and rejection of evidence which we do not deem it necessary to here discuss, as they point to no error.

The charge of the court was severely criticised upon the argument of this motion as being unfair to the plaintiffs. We have, however, examined the exceptions taken thereto, and find none upon which we are willing to hold there was such an error as to make a new trial necessary.

The motion should therefore be denied and judgment ordered for the defendant upon the verdict.

Barker, P. J., and Bradley, J., concur; Dwight, J., not sitting.