Carnes v. Platt — 36 N.Y. Super. Ct. 361

Majority

p. 361

WILLIAM R. CARNES (substituted as plaintiff in the place of MARTHA B. CARNES, deceased), Plaintiff and Respondent, v. GEORGE W. PLATT, impleaded, etc., Defendant and Appellant.

Headnote

I. New Trial.—Motion for, on the Ground that the Evidence

AUTHORIZES NO OTHER VERDICT THAN ONE IN FAVOR OF THE MOVING PARTY.

1. Motion made on the minutes of the judge.

1. When the motion on such ground is made on the minutes and denied, it cannot, in the absence of error, be argued on appeal that the verdict is against the weight of evidence when that point was not raised at the trial either on a motion to dismiss the complaint, or by a request for the direction of a verdict.

3. Motion at Special Term made on a case and exceptions.

1. Query.—On an appeal from sen order of the Special Term denying snch motion, as well as from the judgment, it may be questioned whether, under the provisions of the Code, it is not the duty of the General Term to examine the evidence for the purpose of ascertaining whether the verdict shall stand.

II. ATTORNEY AND CLIENT.—EVIDENCE.

1. Priveleged Communications not admissible.

a. Application of principle.

1. An attorney cannot be allowed to testify that he was originally employed by A. in relation to enforcing a judgment against certain property, and that in consequence of his advice an agreement was made between A. and B. whereby B. should procure an as- ■ signment of the judgment in his own name or that of some third person, and that the subsequent proceedings to enforce the judgment should be had under the directions of the assignee.

1. An offer to confine the testimony of the attorney to what passed between him and A. is open to the same objection.

b. The law relating to the privilege of communications between attorney and client considered and many cases cited.

III. Trial.—Order of Proof.—Refusal to receive Evidence unless CONNECTED, NOT THE SUBJECT OF EXCEPTIONS.

1. WTien evidence is offered which is incompetent unless the plaintiff is connected with it, the refusal to receive it before such connection is made is matter resting in the discretion of the trial judge, and not the subject of an exception.

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Before Barbour, Ch. J., Monell and Freedman, JJ„

Decided November 29, 1873.

XV. The opinion op Judge Monell in Carnes v. Platt, reported in 1st Sweeny, 145, is the opinion op the court, and not a mere concurring opinion, as there erroneously reported.

Appeal by defendant from judgment in ejectment awarding plaintiff an estate for life in the premises described in the complaint, with a right to the present possession.

A statement of the facts appears in 6 Robt. 270.

James C. Carter, for appellant.

Daniel T. Walden, for respondent.

This is the third time that this case comes before the General Term of this court. On each of the two former occasions (6 Robt. 270, and 1 Sweeny, 140 ), it was held that the facts of the case, as disclosed by the evidence, were not sufficient to establish that Houghton delivered the deed in question to Wetmore for the use of Anthony absolutely and with intent to pass the title to Anthony prior to the 10th of August, 1854, the date of the record of the judgment of the Merchants’ Bank of Boston against Houghton, and that Wetmore so received it, and that consequently there was, as matter of law, no absolute delivery and acceptance before that day. The Court of Appeals, however, decided that it was for the jury to determine these questions as questions of fact in view of all the circumstances surrounding the transaction. On the third trial this was done, and the jury, under a charge which was quite favorable to the defendant, determined these questions in favor of the plaintiff. And although some other questions were formally presented

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"by a motion to dismiss the complaint, yet the point that the evidence authorized no other verdict than a verdict for the defendant was raised neither by that motion nor by a request for the direction of a verdict. The defendant throughout the trial treated the case as one that could be determined only by the jury, and having done so, if his motion for a new trial had been made solely on the judge’s minutes, he would not, in the absence of error, be entitled to argue now that the verdict is against the weight of evidence (Rowe v. Stevens, 34 N. Y. Supr. Ct. R. 436). But as the motion appears to have been subsequently made on a case and exceptions, and the appeal is from the order of the Special Term denying such motion as well as from the judgment, it may be questioned whether, under the provisions of the Code, it is not the duty of the General Term to examine the evidence for the purpose of ascertaining whether the verdict shall stand. I have therefore made such examination, but have been unable to find anything in the evidence that under the law applicable to the case, as finally settled by the Court of Appeals, would warrant a disturbance of the verdict.

The counsel for the defendant requested the court below to submit to the jury, as a question for them, «whether the assignment of the judgment to Martha B. Carnes was procured by Charles W. Houghton, and for his benefit, without any intention to retain a lien or security on the judgment for the money advanced to obtain the assignment. The court refused to submit this question to the jury, and to such refusal defendant’s counsel duly excepted. The law applicable to this branch of the case must, for the purposes of this appeal at least, be deemed to have been laid down in the opinion delivered by Mr. Justice Monell on the second appeal. This opinion was the opinion of the court on that occasion, and not a mere concurring opinion as erroneously reported in 1 Sweeny, 145 . The same re

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quest was substantially made on the trial which resulted in the judgment from which the second appeal was taken, and the question now present was therefore necessarily involved in the decision there enunciated. The law as then laid down stands unreversed to this day, and must for that reason still control. It is true the evidence given on the present trial, so far as it relates to the request now under consideration, was more voluminous than that given upon the preceding trial, but when tested by the rules laid down in the opinion of Mr. Justice Moxell above referred to, it was in legal effect no stronger than on the preceding occasion, and consequently the request for its submission to the jury was properly denied. . '

The offer of the defendant to prove by the witness Litch, that he was originally employed by Charles W. Houghton in relation to enforcing this judgment against the property described in the complaint, and that in consequence of advice from the witness, arrangement was made between Charles W. Houghton and Mr. Carnes that Mr. Carnes should procure an assignment of the j udgment in his own name or that of some third person, and that the subsequent proceedings, in order to enforce the judgment, should be had under the direction of such assignee, was properly excluded for the0 reasons, first, that because so far as it went it was insufficient to establish a defence; and second, because it called for the disclosure of confidential communications that had passed between an attorney and his client. It has long been settled, as was pointed out by Wigram, V. C., in Walsingham v. Goodricke (3 Hare, 124), that communications between solicitor and client, made pending litigation, and with reference to such litigation, or made before litigation, but in contemplation of and with reference to litigation which was expected and afterward arose, or made after the dispute between the parties followed by litigation, but not in contemplation of or

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with reference to such litigation, are privileged from disclosure, whether the party interrogated be the solicitor or the client. It has also been settled that professional communications between a party and his professional adviser, although they do not relate to any litigation, either commenced or anticipated, are privileged where the solicitor is the party interrogated. This privilege now extends equally to both parties (Minet v. Morgan, 21 W. R. 467 ; L. R., 8 Ch. 361; Williams v. Fitch, 18 N. Y., 546 , 550; Britton v. Lorenz, 45 N. Y. 51 , 59).

The renewal of the last offer, with the addition that the offered proof was to be confined to what occurred between the witness and Houghton, and that it was to be connected subsequently with proof that Mr. Carnes was made cognizant of the arrangement—not by this witness —and assented to it, and came into it, was also properly rejected. It was open to the same objections as the first offer, and to the additional one that the proposed evidence was clearly not competent unless the plaintiff was connected with it. The refusal to receive it before such connection was made was a matter resting in the discretion of the court, and therefore not the subject of an exception.

The remaining exceptions appear to be equally untenable.

The judgment and order appealed from should be severally affirmed, with costs.

Barbour, C. J., and Moítell, J., concurred.

Cases cited

Britton v. Lorenz 45 N. Y. 51 N.Y. 1871-02-21 at 59 p. 365