Bergmann v. Manes

This action was brought upon two promissory notes made and indorsed respectively by the defendant. The defense was a discharge in bankruptcy, but the answer did not allege that the plaintiff received notice of the bankruptcy proceedings, and it appeared that he was scheduled as a creditor of unknown address. The defendant undertook to prove by his daughter that the plaintiff had actual notice of the bankruptcy proceedings in a' casual conversation between her and him. Upon cross-examination she denied that she had conversed with any one as to the nature of her proposed testimony, and specifically with the counsel for the defendant. Later the plaintiff called that counsel to the stand, who had prepared the case for trial, and inquired of him whether the witness‘had informed lain as to the purport of her proposed testimony. This was objected to in that the communication was privileged, and the objection was sustained under exception. I think that the exception was well taken. The communication, if made,' was that of a proposed witness and not a client. The inquiry was material, as it went to the credibility of the sole witness for the plaintiff as to an Important feature of the case. The plaintiff denied. that any conversation of this character had taken place.

. Further, I have grave doubts whether the proof was sufficient to warrant the conclusion that the address of the plaintiff was unknown, to the defendant at the time of the proceedings in bankruptcy. The defendant’s said 'daughter testifies that-she had known the *104plaintiff for 12 or 14 years; that at the time of the alleged conversation she knew that he lived on Lafayette, avenue; that she had been at his house, in this borough where her father also resided; that-her father and her family were intimate with the plaintiff. The defendant did not take the witness stand, and it was stated that he was in business in Chicago,' 111. The plaintiff testifies that he had. known the defendant for 15 years; that in April and May, 1909, the time of the initiation of. the bankruptcy proceedings, he had lived for 3 years on Lafayette avenue; that the defendant in 1908 and 1909 had called at his house both socially and on business. And the counsel for , the plaintiff testifies. to admissions' of the defendant that he had*made a mistake by having such a discha/rgein bankruptcy, i. e., without notification of his creditors.

The judgment must be reversed and a. new trial should be ordered, costs- to abide the event. .-

Woodwaed, Eich and Cabe, ■ JJ., concurred; Thomas, J., concurred on the last ground stated in the opinion.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the" event;