Matter of King v. . Ashley

This was a proceeding instituted under sections 2707 and 2709 of the Code of Civil Procedure for the examination of the appellant to obtain a discovery of his information concerning property belonging to the estate of William Moore, deceased. The appellant attended in answer to a citation, but declined to answer certain questions put to him on the ground that by section 835 of the Code of Civil Procedure, he was forbidden to disclose the information sought, having been the attorney and counsel of the deceased. The sole object for which the proceeding was instituted was to obtain the disclosure of information. We think that the order punishing the witness for failure to answer is the final order in the proceeding, and, therefore, appealable to this court. (People ex rel. Grant v. Warner, 51 Hun, 53; affirmed on opinion below, 125 N.Y. 746; Matter of Strong v. Randall,177 N.Y. 400.)

On the merits we think the order should be affirmed. It is not necessary to consider whether, by the execution and publication of a will disposing of his interest in the estate of William Van Rensselaer, the testator withdrew any communications he may have made to the witness, as to the identity and location of that estate, from the seal of confidence and the protection of section 857 of the Code. The questions for failure to answer which the appellant was punished are, as required by sections 11 and 2267 of the Code, specifically set forth in the order adjudging the appellant guilty of contempt. These questions do not call for communications from the deceased to the appellant, but for information which he had obtained from other sources as appears by his own testimony. It was settled in the cases which arose before the enactment of the Code provisions on the subject that the privilege of the attorney (or rather that of the client, for it is such) does not extend to everything which comes to his knowledge while acting as attorney or counsel, and does not include information derived from other persons or other sources. (Crosby v. Berger, 11 Paige, 377; Bogert v. Bogert, 2 Edw. Ch. 399; Coveney v. Tannahill, 1 Hill, 33.) The section of the Code is a mere re-enactment of the common-law rule. (Hurlburt v. Hurlburt, 128 N.Y. 420.) The appellant was, therefore, properly required to give all his information or knowledge on the subject that did not involve communications with the deceased.

The order appealed from should be affirmed, with costs.

CULLEN, Ch. J., O'BRIEN, MARTIN, VANN and WERNER, JJ., concur; GRAY and HAIGHT, JJ., absent.

Order affirmed.