—The relator applied by petition for a habeas corpus, and on the return of the writ, was brought before this court by the sheriff. He returns that he holds the prisoner by virtue of and according to the tenor, manner, and command of a certain commitment for an alleged contempt, a copy of which was thereto annexed.
By such commitment it appears that in an action pending in the Court of Common Pleas for the recovery of a lot of land in the city of Hew York, one Bettz had been examined as a witness on the trial thereof; that he was defending the action as the landlord of the defendant; that he was asked whether he had in his possession any deeds, &c., relating to the land; that he answered he had received from the grantors a lease and other papers, which a few days before he delivered to his counsel, the relator, who was also attorney for the defendant, and that he was unable to produce the papers because they were in the possession of the said relator, who was then in court, and acting in the cause as attorney for the defendant.
It also appeared that the relator was then called as a witness, *101and was asked whether he had such papers in his possession, delivered to him by Bettz, and replied that he could not state without examining a bundle of papers then in his possession in court; and on being directed by the court to look at such papers for the purpose of answering the question, refused to do so; and while the case was under consideration, the relator gave the bundle of papers to his client, with instructions to take them from the court.
It is also stated that on a subsequent day the said relator was again examined in the same action, the trial having been adjourned to that time, and he then admitted that he had the papers in court; and he was then asked and directed by the court to look at the papers, so far as to identify them, and to produce the papers, which he refused to do, giving as the reason that it would be a breach of privilege as the attorney for the defendant.
It is also stated that such questions were pertinent to the issue, and for such refusal the relator was adjudged by the Court of Common Pleas to be guilty of contempt.
Upon these grounds the warrant of commitment was issued.
If we were to dispose of this question upon the merits, there can be but little difficulty in sustaining the order made by that court in granting the commitment.
If a party and his counsel can transfer from the one to the other important papers required as evidence in a cause, and thereby prevent the court from compelling the production of such papers on a trial, it will not be difficult in this way to defeat the administration of justice. Such a combination between a party and his attorney might well, under the circumstances, be considered as entirely distinct from a case where the confidential communications of a client are sought to be discloáed. In no instances should such communications be disclosed by an attorney and counsel, and the court should carefully guard against any attempt to compel a counsel thus to betray the confidence of his client. But when the party and his counsel thus combine together to defeat the proper administration of justice, and seek to use this privilege as a cloak for that purpose, it is not entitled to the protection of the court. The counsel could at once have relieved himself of the responsibility by placing in his client’s hands the papers called for by the court, *102instead of retaining possession of them, and thereby defying the power of the court.
The papers sought for were required in evidence, and, it appears, were needed for the purpose of identification. Whether the party calling for them had secondary evidence of the contents, does not appear in the warrant. For such a purpose, it was necessary to show their existence, and that they could not be produced. To this extent, even if the counsel could be protected from disclosing their contents, he was bound to produce them.
This point has been expressly adjudged in the similar case of Phelps a. Prew (24 Eng. L. & Eq. R., 96), although in that case the additional fact appeared, that the counsel stated his client had directed him not to produce the deed. It was there held that the privilege of the client was not violated by requiring the attorney to produce the deed for identification. Judge Wightkait says : “ Compelling the production of the deed for the purpose of identification was no violation of the privilege, it being necessary to show that the attorney had the deed which he was required to produce.” Elle, J., said, “the judge, therefore, was justified in compelling the production of the deed in order that the indorsement might be looked atand Cbompton, J., says: “ There was no violation of privilege in directing the deed to be shown, for the purpose of identification.” And in Dwyer a. Collins (21 Eaw, J. R., 225), it was held that an attorney of a party to a suit may be asked, and is • bound to answer, whether a document which he has received from his client is in his possession, or elsewhere in the court. Pakk, B., says .* “ The privilege does not extend to matters of fact which the attorney knows by any other means than confidential communication with his client, though if he had not been employed as attorney he would not have known them.”
Thus he may prove the fact that a particular document is then in his possession and in court, for this is a fact not professionally disclosed to him. All these cases draw a distinction between answering as to the possession of the paper, and producing it for identification, and as to disclosing the contents.
See also Broad a. Pitt, Wood & M., 233, and Eicke a. Nokes, Ib., 303.
It is not necessary to inquire whether the contents of these *103papers could have been disclosed by the counsel. That the party himself should have been required to produce them, while in court, and in the possession of his agent the attorney, would have been proper, and would have placed the responsibility on the one who should have borne the consequences of refusal.
Whether the ruling of the court was correct or not, we are of the opinion that the statute requires us to remand the prisoner in this case.
By the 40th section of the statute as to writs of habeas corpus (2 Rev. Stats., 567), it is made the duty of the court forthwith to remand the party, if it shall appear that he is detained in custody, * * * for any contempt specially and plainly charged in the commitment, by some court having authority to commit for the contempt so charged.
And by the 42d section the court is deprived of any power to inquire into the justice or propriety of any commitment for a contempt made by any court, officer, or body, according to law, and charged in such commitment.
That the Common Pleas had jurisdiction of the action and of the parties, is not denied. That the contempt was of a court having authority to commit for the same, cannot be doubted. Pc is one for which any court, even not a court of record, can punish, viz., a refusal of a witness to answer a question which he is directed by the court to answer on the trial.
The commitment is regular and sufficient in form, and contains the cause of the alleged contempt plainly charged therein.
I have had occasion heretofore to examine how far a court or officer can inquire into a case of commitment for contempt in the case of Devlin.
In that case, which was before a justice of this court in a special proceeding, and not in court, it was held that only two questions could be examined—first, as to the jurisdiction, and secondly, as to the form of the commitment. That rule is applicable to this case.
It is apparent that the court had authority to examine the witness, and in the language of Judge Bronson in The People a. Capels (5 Hill, 165), if the justice had authority to inquire into the offence, the commitment could not be impeached upon habeas corpus for any supposed error in requiring the witness to answer an improper question. The contempt was specially *104charged, and it was the duty of the judge to remand the prisoner. And again, he says: “ It is evident that the Legislature did not intend to provide for a retrial by habeas corpus in such a case.” And the only inquiry allowed in that case, as in the case of Devlin, was as to the jurisdiction of the magistrate. As that jurisdiction in the present case is undoubted, and the commitment is sufficient in form, and contains all that the statute requires, we are of the opinion that the prisoner must be remanded, and the writ discharged.
An application was made to the court yesterday for the allowance of a writ of certiorari in the same matter.
Although we do not feel at liberty to refuse the allowance of the writ if the relator desires it, under the provisions of the Revised Statutes, which makes it always the duty of the court or judge to allow the writ, still we suppose that the counsel will see from our views in the above opinion, that for the reasons above stated, we could not review the judgment of the Common Pleas in this matter, and that the issuing of that writ would be unavailing to the party.
The writ also should be directed to the officer having the custody of the prisoner, and not to the judge who made the order (§ 52), and the form of the writ as given in the..statute (see § 30), is only to return the day and cause of imprisonment, and not the proceedings.
If the writ of certiorari is desired, it will be allowed in the form directed by the statute.
Present, Davis, P. J., Ingraham and Sutherland, JJ.