Hurlburt v. Hurlburt

• Decision Date: 13 October 1891
• Citation: 128 N.Y. 420,28 N.E. 651
• Parties: HURLBURT et al. v. HURLBURT.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 420

28 N.E. 651

HURLBURT et al.

v.HURLBURT.

Court of Appeals of New York.

Oct. 13, 1891.

Appeal from supreme court, general term, fifth department.

Action for money had and received, brought by Lyman F. Hurlburt and another, administrators of Charles F. Hurlburt, deceased, against Ella Hurlburt, administratrix of Thereon D. Hurlburt, deceased. Verdict for defendant. Judgment was ordered for defendant on plaintiffs' motion for a new trial on exceptions ordered to be heard at the general term in the first instance. Plaintiffs appealed. Affirmed.

Charles McLouth, for appellants.

S. B. McIntyre, for respondent.

EARL, J.

This action was brought to recover the sum of $6,682, with interest thereon, which it is alleged Charles F. Hurlburt, the plaintiffs' intestate, placed in the hands of his son Theron, the defendant's intestate, as his agent, and for his benefit, in the latter part of the year 1881. Theron was a son of Charles, and he died December 25, 1883, and Charles died January 6, 1884. The defendant claimed that the money was a gift to her husband, and that he was never under any obligation to repay the same. The plaintiffs were unable to produce any writing of any kind evidencing any obligation on the part of Theron to repay the money. They are the sons of Charles, and were the sole witnesses to establish their claim, and this they attempted to do by testifying to certain conversations which they overheard between their father and Theron. Upon the trial the defendant rested her case mainly upon the conceded fact that for about two years before the death of her husband the money claimed had been in banks to his credit, and had been managed and controlled by him, and she produced proof of various declarations and admissions made by Charles, tending to show that the money was transferred by him to his son as a gift, and not to be held for his benefit.

During the progress of the trial the plaintiffs made objections to evidence which were overruled, and they now claim some of the rulings were erroneous. We will briefly notice some of them. Theron and Charles, in the spring of 1883, went together to consult a lawyer by the name of Aldrich as to the best mode of disposing of or adjusting the prospective interest of the plaintiff Lyman as an heir in the farm belonging to his father, and several plans were suggested by Theron, in the presence of his father, and assented to by him, to accomplish that end. The statement was there made by Theron to the lawyer, and assented to by his father, that Lyman had had all his share in his father's personal property; and other statements were there made by Theron, and assented to by his father, of similar import. Aldrich was called by the defendant to prove these statements and admissions. The plaintiffs objected to his evidence on the ground that he was an attorney, consulted professionally, and that the communications to him were privileged. The court overruled the objection, and received the evidence. We think that in receiving this evidence there was no violation of section 835 of the Code, which provides that ‘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.’ This section is a mere re-enactment of the common-law rule, and it cannot be supposed from the general language used that it was intended to change or enlarge that rule as it had been expounded by the courts. It has frequently been said that the object of the rule embodied in the section is to enable and encourage persons needing professional advice to disclose freely the facts in reference to which they seek advice, without fear that such facts will be made public to their disgrace or detriment by their attorney. Such a case as this is plainly not within the rule. Here Theron and his father were both interested in the advice which they sought, and they were both present at the same time, and engaged in the same conversation. Each heard what the other said, so that the disclosures made were not, as between them, confidential, and there can be no reason for treating such disclosures as privileged. It has frequently been held that the privilege secured by this rule of...