Montgomery v. Perkins

• Decision Date: 17 February 1899
• Citation: 94 F. 23
• Parties: MONTGOMERY v. PERKINS et al.
• Court: U.S. District Court — Southern District of New York

94 F. 23

MONTGOMERY v. PERKINS et al.

United States Circuit Court, S.D. New York.

February 17, 1899

William C. Perkins, for the motion.

L. J. Phelps, opposed.

LACOMBE, Circuit Judge.

Question 26 is improper in form, calling for a legal conclusion. As to questions 29 and 30, they are clearly improper so far as conversations of the witness with Mr. Macfarland are concerned, if Mr. Macfarland is, as it is asserted on the brief, counsel for complainant. Certainly conversations between solicitor and counsel for a party touching the subject-matter of the litigation are privileged. As to consultations with Mrs. Day and Mr. Larocque, there is some suggestion in the brief that they are the witness' clients in this matter, being the real parties in interest for whom he is acting. If this be so, and it is made to appear in the record, the witness is entirely within his privilege in refusing to answer; but, as I understand the situation, the record does not disclose any such relation, and the witness does not assert that it exists. If it does not exist, I am wholly at a loss to understand upon what theory privilege of counsel is claimed as to these questions, which ask as to conversations or consultations, not with the witness' clients, but with some third persons. No authority is referred to, and I know of no principle of law which would call for such an extension of the doctrine of privilege.