#### Bartlett *v.*Bunn.

*(Supreme Court, General Term, Third Department.*

May 26, 1890.)

Witness—Privileged Communications—Attorney and Client.

A communication by plaintiff to his attorney, for the purpose of its publication to defendant, is not privileged, under Code Civil Proc. N. Y. § 835, prohibiting an attorney to disclose a communication made by his client to him in the course of his professional employment.

Appeal from Montgomery county court.

Action by Emily B. Bartlett against T. Romeyn Bunn. Plaintiff appeals. For other litigation between the same parties, see 8 if. T. Supp. 155.

Argued before Learned, P. J., and Landon and Mayham, JJ.

*12. D. Maxwell,*for appellant. *C. S. Niebei,*for respondent.

Mayham, J.

Appeal from the judgment of the Montgomery county court reversing a judgment of a justice of the peace. The action was for money had and received by defendant for the plaintiff. The answer was a' denial, and a further allegation that all the money received by defendant for plaintiff was paid out by defendant at plaintiff’s request, on Ills liabilities. On the trial the plaintiff introduced evidence tending to show that the defendant had harvested and sold hay from lands of which the plaintiff, defendant, and others were tenants in common, and that all the proceeds of the hay the defendant had paid out in taxes on the common property, and insurance on the hay, except 16 cents. The plaintiff contested the defendant’s authority to pay the taxes, on the ground that she had not authorized such payment. To prove authority in fact from plaintiff to defendant, the defendant called one L. A. Stevens, who was an attorney at law; was doing some of plaintiff’s business in the settlement and management of this joint estate. The defendant then asked the witness, in various forms, if plaintiff had directed him to tell defendant to pay the taxes out of the proceeds of this hay. This was objected to by the plaintiff, on the ground that it was privileged; and the objection was sustained, and the answer excluded. The justice rendered judgment in favor of the plaintiff and against the defendant for $18.57, and costs. The county court reversed that judgment, and from the judgment entered upon such reversal the plaintiff appeals to this court.

Whether the defendant was authorized to pay the taxes on this common property out of the share of the proceeds of the hay belonging to the plaintiff was a material question in this case, and, as the testimony offered bore directly upon that point, if competent, its exclusion was error for which the county court properly reversed the judgment of the justice. The rule at common law was well settled that confidential communications, made to an attorney by a client, relating to a matter in which he was employed or acting as attorney, were privileged, and could not be given in evidence. The substance of this rule was that ail communications made by a client to his counsel for the purpose of professional advice or assistance are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper *211for such advice and aid, *(Williams*v. *Fitch,*18 N. Y. 551;) and, whenever' the communication made relates to a matter so connected with the employment as to afford presumption that it was the ground of the address by the client, then it is privileged from disclosure, *(Britton*v. *Lorenz,*45 N. Y. 51; *Bacon*v. *Frisbie,*80 N. Y. 394.) So a conversation heard by an attorney between his client and another, relating to the business in which the attorney is engaged for his client, is privileged. *Root*v. *Wright,*84 N. Y. 72. And the substance of this rule is enacted in section 835 of the Code of Civil Procedure, as follows: “An attorney or counselor 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.” But this prohibition may be waived' by the client, and, when the communication is made for the purpose of its publication or communication to another, it necessarily loses its privileged character, and section 386 of the Code provides expressly for such waiver. It follows, therefore, that when, from the very nature of the communication, it was designed by the author for another, and to be communicated to such other, it loses its character as privileged. In *Re Colman’s Will,*111 N. Y. 220, 19 N. E. Rep. 71, where the attorney who drew a will was requested by the testator to subscribe it as a witness, it was held to be a. waiver of the privilege; for the reason that, by the very nature of the communication made by the testator, he had made .it the duty of the attorney to disclose the communication made to him on the probate of the will. In the-case at bar the question propounded, the answer to which was excluded by the justice, related to a communication required by the plaintiff to be made-public, —at least to be communicated to the defendant; and, if we should assume that the witness was the attorney for the plaintiff in this matter, (which by the evidence is by no means certain,) still it is quite clear that, whatever obligation to secrecy might be imposed by that relation, it was expressly-waived when the communication was directed to be made to the defendant.. The learned county judge was right in reversing the judgment for the rejection of this offered evidence, and the judgment of the county court must for-that reason be affirmed, with costs. All concur.