Platt v. Bank of New York 41 A.D.2d 648

In this action inter alla to recover damages for breach of an alleged contract of defendant’s testator to make a bequest to plaintiff, defendant appeals from an order of the Supreme' Court, Nassau County, entered May 3, 1972, which granted plaintiff’s motion (1) to examine before trial a. certain witness) Leon' Sehaefler, who is a lawyer, and (2)-to issue a subpoéna to compel said witness to attend and tó produce prior wills, correspondence, and documents. (Defendant’s appeal from a -second order of said court, dated August 22, 1972, was dismissed by order of this court" dated November-28, 1972.) • Order entered May 3,1972 modified. (1) by striking the words “in- all respects-”'from the first decretal paragraph thereof and inserting, immediately after thé word “granted” in'said paragraph, the words “to the extent.set forth below”;' and (2) by striking from.the second decretal paragraph thereof everything which follows the matter directing that a subpoena may be issued for the witness’.examination “as a witness in this action” and substituting therefor the following:'“limited to the following issues: Whether defendant’s decedent in'the presence of-a person, other than an attorney at law, or an ..employee of Mr. Sehaefler, discussed with Mr. Sehaefler his testamentary' plan concerning plaintiff .and, if such discussion was had,, the nature and substance, thereof; and whether Mr. • Sehaefler, as the decedent’s .attorney, prepared any will, or other document under the decedent’s instructions which the decedent signed embracing such- discussed testamentary plan; and, if a will or other' document was. signed' by the decedent embracing a testamentary plan which might' thus have been discussed under the above-mentioned circumstances, the subpoena may-include a. direction to produce -such document if it is in the •custody or control of Mr. Sehaefler.” As so modified, order affirmed, without - costs. In our opinion, the delivery by Mr. Sehaefler in a sealed envelope to • the Bank of New York, for custody and safekeeping- of a will prepared by ' him and executed by the decedent, did'not constitute a waiver by the decedent of the attorney-client • privilege involved in any communication by him. to Mr. Sehaefler pertaining to the will. However, the record here'discloses (a) that there may. have been a conference-in May,-1957, or -prior' thereto, among the decedent, Mr. Sehaefler as the decedent’s attorney, and another person who was. not employed by Mr. Sehaefler. and who was not an attorhéy at law, concerning the decedent’s testamentary plan for plaintiff and (b) that at such conference a testamentary plan involving plaintiff may have been discussed; If such., conference was. had in the presence of a person who. was not an attorney at law or -any. employee of Mr. Sehaefler,- in our opinion, the communication was' riot. privileged (cf. Baumann v. Steingester, 213 N. Y. 328, 333; Doheny v. Lacy, 168 N. Y. 213; Workman v. Boylan Buick, 36 A D 2d 978; Brunswick Corp. v. Aetna Cas. & Sur. Co., 27 A D 2d 182, 183; 8 Carmody-Wait 2d, New York Practice, § 5:86; Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 4503.15-4503.16). Under all of the circumstances shown,, we feel-the limited pretrial examination of Mr. Sehaefler ás a witness is warranted.' Hopkins, Acting P. J., Munder, Christ, Brennan and Benjamin, JJ., concur.