121 N.Y.S. 1131 | N.Y. App. Div. | 1910
The evidence shows that one Oagliostro in May, 1906, upon a sheriff’s sale of real estate in Kings county, had in execution of a judgment bid in the property for $800 and paid an additional amount of $17 in sheriff’s fees besides some advertising and other expenses. He afterwards learned from one of the title companies that the title was invalid owing to defects in the proceedings, and thereupon consulted the respondent professionally with respect to his rights. Oagliostro had been respondent’s client for a considerable time prior to the occurrences in question.
The sale alluded to was in execution of a judgment in an action entitled Maltesi v. Chirico. Prior to this time, in March, 1906, a-petition in bankruptcy had been filed against the judgment debtor, Chirico, and the sheriff paid over the $800 received from Oagliostro to the trustee in bankruptcy. Upon learning that this had been done the respondent advised a reclamation proceeding in the bankruptcy court and later obtained an order requiring the trustee to show cause why he should not pay over the money to Oagliostro. On October 29, 1906, an order in that proceeding was entered directing that this siim of $800 be paid over “to said petitioner, Antonio Oagliostro, or his attorney.” The respondent received
The charge is that he was guilty of fraud, deceit, malpractice ' and gross unprofessional conduct in his office as an attorney and counselor at law in that he concealed the receipt of the money from his client, retained and used it for his own purposes and falsely represented to his client that it had not been collected.
The referee has found that the respondent received and retained this money belonging to his client without authority and concealed the fact until he paid it On December 16, 1907, and that he dealt with it as his own during this period to the extent indicated. He further reported : .“ I do not find that he falsely stated that he had not received the money.”
We have carefully examined the record and -are satisfied that until á few days before the payment on the 16th of December, 1907, Cagliostro was entirely without knowledge that the respondent had collected this sum over a year prior thereto.
The respondent claims that immediately ■ after its collection by him he informed his client of that fact ail'd that he told respondent to keep possession of it until certain matters were disposed of. ■ Respondent does not claim that it was a loan to him or that he had any right to use it, and asserts that during all this period he made no use of it, but retained it as custodian for Cagliostro.
The respondent’s testimony is so full of glaring inconsistencies, of ' utter improbabilities, and in vital matters so completely contradicted by documentary evidence that we agree with the referee that his claim is incredible. The referee has given him the benefit of, a doubt in regard to the charge of falsely stating to his client that he had not received*the money which we do not ourselves entertain.
We think the evidence warrants the conclusion that the respondent has been guilty of such conduct as demonstrates his unfitness for the practice of the profession of the law, and he is accordingly disbarred.
McLaughlin, Laughlin, Scott, and Dowling, JJ., concurred.
Respondent disbarred. Settle order on notice,
