In re the Application for the Issuing of a Subpœna to Whitlock

Majority

p. 719

In the Matter of the Application for the Issuing of a Subpœna to Bache McE. Whitlock, App’lt.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

1. Evidence—Execution of foreign commission—Privileged communications—Code Civ. Pro., § 885.

Wliére upon the execution of a commission to take testimony issued from the high court of justice in England in an action of lihel pending before it wherein one P. was plaintiff and W. defendant, it was sought to examine as a witness the attorney of C., who was the plaintiff in an action for embezzlement brought against P. in this court, touching certain communications and correspondence had between his client O. and himself, Held, that as such communications were privileged he will not be compelled to divulge them or produce'the documents called for.

3. Same—What privileged. "

Where it is sought to question the attorney as to certain letters written by P. to O., Held, that as it did not appear that such letters were material to the issues of the libel suit, and as it was obvious that the questions were designed to discover the ground work of the plaintiff’s cause of action in the embezzlement case, the witness ought not to be coerced into premature disclosures.

3. Same—Deposition—Power to punish witness for refusal to answer questions—Code Civ. Pro., § 915.

A court or judge has power when it appears that a witness refuses to .answer a proper and material question put to him before an open commission, to require him to do so, and in case he fails to answer or produce the

p. 720

writings called for, to punish him, but to that end it must be made to appear that the question which he refuses to answer or the document which he refuses to produce is material within the issues of that case and not merely of another case.

Appeal by Bache McE. Whitlock from an order of the special term, requiring him to appear before the commissioners appointed by the high court of justice in England to take evidence- in this state in an action pending before it, wherein Charles G-. Francklyn is plaintiff, and John Walter and George C. Wright, proprietors of the London-Times, are defendants.

W. C. Beecher, for app’lt; Q. E. Tracy, for resp’ts.

The commission, which was issued by the high court of justice in England, to take evidence in the case of Francklyn v. The Proprietors of the London, Times, authorized the taking of the testimony, viva voce, of the witnesses produced before it by the solicitors or agents of the parties to that action.

The action in which such testimony is sought is for libel, for the publication in the London Times of a charge, emanating from New York, that the plaintiff in that action, being described as the president of the Home Silver Mining Company, had been arrested and committed to prison in default of bail in five hundred thousand dollars, which he was required to find, and alleged that he was charged with having embezzled five hundred and eight thousand dollars of the company’s funds.

The counsel for the publishers proved, before the commissioners, the fact of Francklyn’s arrest, and proceeded to-offer evidence of -matters charged against him in the pro-! ceedings for arrest, and called as a witness, in their behalf,.1 Mr. Whitlock, the appellant. . '

From his evidence, it appeared that he was an attorney] and counselor at law, and the agent and attorney for Sir] Bache Cunard, who was the plaintiff in an action in the-' supreme court of the state of New York, in which Franck-! lyn, as defendant, had been arrested and held until bail] was given, upon a charge of embezzlement, to the extent of about three million dollars.

This witness had in his possession certain • letters and re-' ports, emanating from Francklyn, to Sir Bache Cunard,! relating to the controversy between Cunard and Francklyn.: He declined on cross-examination to answer certain questions that were put to him, touching such papers, and refused to disclose communications made between himself and his client, upon the ground that they were privileged, under the law of this state, and that he could not, consequently, be compelled to divulge them; and further de~

p. 721

dined to produce the documents admitted to be in hi© possession, upon this and other grounds.

The witness testified that he caused the arrest of Francklyn in the action for embezzlement, upon a special instruction, in writing, received from Sir Bache Cunard, and that the witness wrote letters to his client in regard thereto.

He was then asked these questions:

Q. Will you please produce the letter which you wrote to Sir Bache Cunard upon the subject ? A. It is not in my possession.

Q. Did you keep a letter-press copy of that letter ? A„ I did.

Q. Have you that in your possession ? A. I have.

Q. Will you produce that ? A. I decline to do so.

In another part of his examination, the witness wa© asked these questions:

Q. Did not the plaintiff in that action, state to you in. June, 1887, that Francklyn has converted, in money and cash, to his own use, to the value of three million dollars ?: A. I decline to answer that question on the same ground

-X -X- * * * * * * ■*

Q. Will you please produce all letters received by you from Sir Bache Cunard prior to the commencement of this action and relating to the commencement thereof; this is the action of Cunard v. Francklyn ? A. I decline to do so on the same ground.

Q. Will you produce all communications made by you to Sir Bache Cunard prior to the commencement of this action of Cunard v. Francklyn, and relating thereto ? A. There are none of them in my possession.

Q. Will you produce letter-press copies of any that you have ? A. I decline to do so on the same ground.”

All of those questions the witness declined to answer upon the ground of the professional relations existing between himself and his client, Sir Bache Cunard.

In my judgment no one of those questions was allowable under the Code of Civil Procedure of this state, which provides (section 835) as follows: ‘‘ An attorney or counsellor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment.”

The evidence sought to be adduced by the question© quoted above was directly in conflict with the wholesome common law rule which has existed for so many years and which finally found its embodiment, in substance in the statute above quoted.

The rights sought to be protected by this law are important and of a general public nature. It is not an answer to

p. 722

the objection, to say that such a statute does not exist in England where the testimony here sought is to be used. Hor is it needful for us to speculate whether or not the -common law rule which exists there is clearly enough -defined to lead to the.protection of the witness. It is sufficient that it appears, before us, that an officer of the court, upon whom is enjoined his sacred silence, is called upon to violate his oath of office and the statute. The evil of permitting this testimony to be given is instant upon its disclosure before the commissioners, when it becomes, at once, a matter of public record, and is not dependent, in any respect upon the use to which it may ultimately be put in the trial of the action in which it is sought to be used.

Ordinarily, in taking the testimony of citizens or residents -of this state, to be used elsewhere, the practice of the courts has been, and is, not to interfere with the course of the examination,, so long as no public rights are invaded and no positive statute is violated, leaving the reception or rejection of the testimony to the rules as they shall be administered in the foreign jurisdiction at the time of the trial. But the case before us' presents an exception to the rule. Should we compel Mr. Whitlock to answer these questions, we should require him to disclose the very secrets which the statute was intended to protect and which the public is so deeply interested in preserving.

These questions, therefore, and others, if there be any of like import, were illegally and improperly put to the witness on his cross-examination, and he was clearly justified in refusing to answer them.

There are other matters, however, involved in the order /appealed from which rest upon an entirely distinct consideration. The witness was shown to have in his possession certain letters, written by Mr. Francklyn, who never was a client of his, addressed to another person, mainly to Sir Bache Cunard, which found their way to the hands of the plaintiff’s attorney in the action of Cunard v. Francklyn.

It is obvious that this attempted cross-examination was -designed to discover the ground-work of the plaintiff’s claim in the embezzlement case, and that it did not have any bearing upon the issues in the action for .libel. It was a palpable attempt, under the guise of a cross-examination, to bring out facts which were material only in other controversies. When such a purpose affirmatively appears, the witness ought not to be coerced into premature dis..closures. Undoubtedly, under section 915 of the Code of «Civil Procedure, a court or judge has power, when it -appears that a witness refuses to answer a proper and .material question put to him before an open commission, to require him to do so, and in case he fails to answer or

p. 723

produce the writings, to punish him; but to that end it must be made to appear that the question which he refuses to answer, or the document which he refuses to produce, is material within the issues of that case, and not merely of another case.

But it is quite clear that the object of the cross-examinatian of this witness was to lay a foundation for the trial,, not of the libel suit, but of the case of Cunard v. Francklyn, and for this reason I think this part of the order is also erroneous. Had it been made to appear that this correspondence, of which the witness is the custodian, might, be material to the issues of the libel case in the remotest particular, I should be in favor of affirming that part of the order appealed from, for it clearly does not involve any question of professional privilege; but inasmuch as it appears affirmatively that it is wholly irrelevant to the libel action and to the direct examination of the witness, the order, as a whole, should be reversed.

It is so ordered, with costs and disbursements.

Van Brunt, Ch. J., and Brady, J., concur.