Essex County National Bank v. Johnson. William Man (A. P. & W. Man, attorneys) for plaintiff, respondent. PER CURIAM (VAN BRUNT, P.J., DANIELS and INGRAHAM, JJ.).—Exceptions to proceedings upon the trial can only be reviewed by appeal from the judgment, or when they are ordered in the first instance to be heard at the general term. The motion to dismiss the complaint in this action was a part of the proceedings at the trial, and an exception to its denial can therefore be only reviewed in the same manner as any exception taken at the trial may be brought up. There is no authority whatever for the entry of the order from which this appeal is taken, and therefore the appeal from that order presents nothing for us to review. The appeal should be dismissed, with costs. ESSEX COUNTY NATIONAL BANK, RESPONDENT, v. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; §§ 636 et seq. Attachment-when affidavit sufficient-allegation in action on note that plaintiff is holder for value before maturity and of non-payment. In an action upon a note it is not necessary to allege in affidavits upon which an attachment is granted that the plaintiff is the holder of the note for value before maturity or that the note has not been paid, as these are affirmative defences which it is not necessary for the plaintiff to rebut in the first instance.* *See Tracy v. Tracy (20 N. Y. Civ. Pro. 98), where it was held that non-payment must be alleged in the complaint in an action on a note. VOL. XXI.-21. Essex County National Bank v. Johnson. Where an attachment was granted in an action brought by a national bank on a promissory note, upon an affidavit made by its president in which it was stated that he is president of the plaintiff and that there are no counterclaims to the cause of action set up therein known either to the plaintiff or deponent,-Held, that the affidavit was sufficient to show the non-existence of counterclaims; that the position of the affiant was such that he would be presumed to have knowledge with reference to the claims which might exist against the corporation which he represented at the time of the commencement of the action. (Decided October 16, 1891.) Appeal by the defendant from an order of the New York county special term denying a motion made by the defendant to vacate an attachment. This action was brought by the plaintiff, The Essex County National Bank of New Jersey, to recover on promissory notes made by the defendant. An attachment was issued and levied upon the property of the defendant, which was granted upon an affidavit made by the president of the plaintiff. In this affidavit the affiant stated that "he is the president of the plaintiff above named;" set forth the notes, and that they were due and unpaid, and that the amount sued for was due and owing over and above all counterclaims known to plaintiff or deponent. Defendant moved to vacate the attachment on the ground that the affidavits upon which it was granted were insufficient, and asserted that they were insufficient, among other things, in that it did not appear that the statements made therein were made on the affiant's personal knowledge, as there was nothing to show that he was connected with the bank before the note came into its possession. The motion was denied at special term and this appeal taken by the defendant. A. B. Carrington (Carrington & Emerson, attorneys), for defendant, appellant. Essex County National Bank v. Johnson. George A. Strong (Martin & Smith, attorneys), for plaintiff, respondent. PER CURIAM (VAN BRUNT, P.J., DANIELS and INGRAHAM, JJ.).—We see no reason for disturbing the attachment granted in this action. Most of the allegations as to which the knowledge of the president of the bank in making the affidavit is challenged were entirely immaterial, and need not have been made in order to make a perfect cause of action. As to the question of payment, or whether the note was taken for value before or after maturity, those are affirmative defences which it is not necessary for the plaintiff to rebut in the first instance. The president of the bank at the time of making the affidavit states that there are no counter-claims to the cause of action set up in the affidavit known either to the plaintiff or to deponent; and this is a compliance with the Code. There is no requirement which compels the party making the affidavit to have knowledge of all the transactions of the plaintiff for the six or twenty years prior to the time of the application for the attachment during which the counter-claims might have arisen. The position of the affiant was such that he would be presumed to have knowledge with reference to the claims which might exist against the corporation which he represented at the time of the commencement of the action.* We think, therefore, that the order should be affirmed, with $10 costs and disbursements. *See Natl. Broadway Bank v. Barker (20 N. Y. Civ. Pro. 338; aff'd, 21 Id. 120); Hodgman v. Barker (20 Id. 341; aff'd, 21 Id. 121); E. W. Bliss Co. v. Opera-Glass Supply Co. (ante, p. 136). In re Enoch Lamb. In re PROBATE OF THE ALLEGED WILL OF ENOCH LAMB, DECEASED. SURROGATE'S COURT, NEW YORK COUNTY; OCTOBER, 1891. §§ 835, 836. Witness-when attorney's privilege waived. An attorney cannot testify to facts attending the execution of a will drawn by him for his client unless the client waives the privilege; but where he is a subscribing witness, the privilege is waived not only with respect to the facts that occurred on the execution of the will, but also with regard to all communications and transactions between the testator and his attorney having reference to the will, and the client cannot limit the waiver to facts accruing on the execution and maintain the privilege with respect to instructions given for its preparation. Matter of Coleman (111 N. Y. 320), followed. (Decided October 30, 1891.) Objection to testimony of an attorney on a proceeding for the probate of an alleged will of the decedent. Sufficient facts appear in the opinion. RANSOM, Sur.-By a provision of the Code of Civil Procedure," an attorney or counsellor-at-law shall not be allowed to disclose a communication made by his client to him, or his advice given therein in the course of his professional employment" (§ 835) "unless the privilege is expressly waived by the client" (§ 836). The court of appeals, in the matter of Coleman (111 N. Y. 320), held that if a client, in his lifetime, shall call his attorney as a witness in a legal proceeding to testify In re Enoch Lamb. to transactions taking place between himself and his attorney, such an act would be held to constitute an express waiver of the seal of secrecy imposed by the statute, and that it cannot be any less so when the client has left written and oral evidence of his desire that his attorney should testify to facts learned through their professional relations upon a judicial proceeding taking place after his death (pp. 227 and 228); and that the act of the testator in requesting his attorneys to become witnesses to his will leaves no doubt as to his intention thereby to exempt them from the operation of the statute and leave them free to perform the duties of the office assigned them unrestrained by any objection which he had power to remove. In the present proceeding the testator, by his will, disinherited his eldest son. Mr. Davis, the attorney who drew the paper, was produced for examination as a subscribing witness. He was asked on cross-examination whether the decedent said anything to him in respect to the son who is disinherited. The witness declined to answer, stating that the communications between them were confidential, and that the decedent made the request that they be so regarded. On the part of the decedent there is an express non-waiver of the privilege in respect to the instructions. The language of section 835 of the Code, strictly construed, does not admit of a lawyer testifying to the facts attending the execution of a will drawn by him for his client. The court of appeals has not only relaxed that rule when the lawyer is a subscribing witness, but holds that he may testify to antecedent communications with his client in respect thereto. The objection was not well taken. A testator cannot waive the privilege in respect to proving the facts that occurred on the execution of a will and maintain it in respect to the instruction, given for its preparation. It must apply to all communications and transactions had between the testa |