#### Anna B. Haulenbeek *et*al., Ex'rs, App’lts, *v.*Daniel McGibbon, Resp’t.

*(Supreme Court, General Term, Fourth Department,*

*Filed May 8, 1891.)*

Evidence—Privileged communications—Attorneys.

In an action upon a promissory note against the alleged endorser where-the defense was forgery, a lawyer who was attorney for the owner of the note at its date, testified that in any conversation he had with defendant, he was acting in a double capacity and that relations to a certain extent of counsel and client existed; that in his further efEorts to procure a settlement he went to New York, the expenses being paid by the owner of the note and defendant; that what he did was done with the knowledge of both parties and had refused to act as attorney on either side; that defendant looked on him as a mutual friend and he considered he was acting in the same capacity as if drawing a contract for two persons. *Held,*the relation of attorney and client did not exist and that statements made by defendant to the witness in reference to the endorsement were not privileged.

Appeal from an order of the Broome special term, entered in Delaware county, September 10, 1890, denying the plaintiffs’ motion for a new trial made upon a case and exceptions and upon the ground of newly discovered evidence.

The action is upon a note dated September 8, 1884, for $2,000,. *653made by Nathan 0. Wood and endorsed, as it is alleged, by the defendant, and is payable at Delaware County Bank one year after date. The answer denies the endorsement and alleges that it is a forgery. The case was tried at the Delaware circuit February, 1887, and a verdict rendered for the defendant. The note was delivered to Mrs. C. F. White and by her transferred to James H. White, in whose name the action was brought. Since the trial he has died, and the plaintiffs have been substituted in his place.

*John B. Gleason,*for app’lts; *Edwin D.*Wagner, for resp’ts.

Merwin, J.

Upon the trial of this action, Samuel H. Fancher was called as a witness for the plaintiff, and testified that he was a lawyer, and was at the date of the note acting as attorney for Mrs. 0. F. White in reference to a claim she had against Wood, the maker ; that after some negotiation, the note, bearing as was-supposed the genuine endorsement of the defendant, was taken in settlement of the claim and delivered to Mrs. White; that about the time the note became due, it was sent to the Walton Bank for collection,-’ and, as the witness thinks, delivered by him to Mr. Mead, an officer of the bank ; that the witness had the note in his possession, and McGibbon, the defendant, saw it there. Tho witness was then asked the question; “ While the note was in your possession, did you have a conversation with Mr. McGibbon in relation to the note?” The witness then stated that in any conversation he had with McGibbon, he was in his judgment ach ing in a double capacity, and that the relations, to a certain extent,, of counsel and client existed; that in his further acting in the matter he was endeavoring to procure a settlement between the parties; that he went to New York to see Mr. and Mrs. White upon three occasions afterwards, and two of the times the plaintiff paid his expenses, and at one time the defendant paid a part of his expenses , that he rendered an account to Mr. White for all the services that were rendered, by which he received a sum of not much more than enough to cover his expenses; that he was not retained by McGibbon as his counsel in any way; was notretained by either side; declined to have anything to do with either side; that so far as he did anything, he did it with the full knowledge of both parties, and refused to have anything to do as attorney upon either side of the case; that McGibbon asked to have the note sent up to the office, and he (McGibbon) looked upon him (the witness) as a sort of mutual friend in the matter, and he came there and talked freely upon the matter; that to a certain extent he considered he was acting in the same capacity as he would if he was drawing a contract for two *persons,*that McGibbon did not ask him to act as his attorney, but he paid a portion of his expenses going to New York afterwards to see about a settlement. It does not appear that he went at defendant's request. The witness then stated that he had a conversation with Mr. McGibbon in reference to his endorsement upon the back of the note, and was asked to state such conversation. To this the defendant objected that it was a conversation with the *654witness as his counsel and was privileged. The objection was sustained, and- plaintiff excepted.

By § 835 of Code Civil Procedure, it is provided that “ 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.” Before this section can apply in any case, a contract relation of attorney and client must exist, based upon an employment by the client. Earl, J., in *Renihan*v. Dennin, 103 N. Y., 579; 4 N. Y. State Rep., 261. It is not enough that the communication be confidential, the fact of professional employment must also exist. *Rochester City Bank*v. *Suydam,*5 How, Pr., 258. The privilege does not apply to cases where the party applied to, though an attorney, refuses to act as such, and is, therefore, only applied to as a friend. 1 Gr. Ev., § 244; *Greenough*v. *Gaskell,*1 My. & K., 104; *Beeson*v. *Beeson,*9 Penn. St., 301.

In the present case it distinctly appears that the relation of attorney and client did not exist between the witness and the defendant, the witness was not retained by either side, expressly declined to have anything to do with either. At most, so far as the defendant was concerned, he was in the position of a friend. We think that a case for the application of the rule of privilege was not made out and the evidence was improperly rejected. It is very clear that it was material. It follows that there must be a new trial.

Order reversed and new trial granted, costs to abide the event.

Hardin, P. J., concurs.