107 N.Y.S. 462 | N.Y. App. Div. | 1907
Lead Opinion
Michael O’Sullivan was admitted to practice as an attorney and counselor at law in July, 1895. Sometime after his admission it appears that he was appointed a deputy fire marshal in the city of New York, and in the performance of his duties he made charges against one Adolph Meyer for setting fire to a tenement house in the city of New York. Meyer was indicted by the grand jury, p>leaded guilty and was sentenced to imprisonment for twenty years. Subsequently the respondent lost his position as fire marshal and was appointed a deputy tax commissioner of the city of New York. While deputy tax commissioner the wife of Meyer applied to the respondent to secure the release of her husband. The respondent went to Sing Sing prison where Meyer was confined and had an interview with him. Shortly after this visit to Sing Sing Meyer’s wife again called on the respondent and said that she had received a letter from her husband telling her to call upon him; that she had $300 which she would be willing to pay if she had any reasonable assurance that her husband could be pardoned. Mrs. Meyer’s testimony is that. the respondent first sug
“ Received from Mrs. Emily Meyer $300 to be used for legal services in procuring the discharge from State’s prison her husband, Adolph Meyer, $250. to be returned in case said, prisoner is not discharged.
“(Signed) MICHAEL O’SULLIVAN.”
The respondent’s account of this interview was that the woman told him that she was willing to pay the $300 if she had any reasonable assurance that this man could be got out on a pardon; that the respondent told her that he was a deputy tax commissioner and was not- practicing law, but that if she decided on paying the money and made him custodian of the money he would secure an attorney for her in the matter; that she conferred with somebody and then came back and deposited the $300 with him,when he gave her the foregoing receipt; that it was agreed that he was to engage an attorney and was to pay him a retainer of $50. The respondent also testified that he did engage an attorney and paid him $50. This attorney did nothing in the matter of securing a pardon for over a year, when he died. The respondent then tried to get some of the papers from him, but finally gave it up. He then communicated with Mrs. Meyer and said that he would have to get another attorney, to which she said “All right;” that he thén employed another attorney to whom hepai'd $25. This other attorney did nothing and things remained in this, situation until the spring of 1905 when the' respondent got signatures to a petition for the pardon of Meyer, which petition was presented to the Governor. Subsequently the respondent went to Albany and saw the Governor about it, but the application for a pardon was denied. In September, 1905, Mrs. Meyer commenced an action in the Municipal Court of the city of Hew York to recover from the respondent $250 whicli he agreed to repay to her in case no pardon was granted. He interposed a verified answer in that action in which he alleged that -lie was an attorney and counselor at law and that he was. employed and acted as an attorney at
It is quite clear that under the circumstances thus disclosed the respondent is not a proper person to be a member of the bar*. His own testimony shows that he lacks both integrity and truthfulness, and with such a.-character he should not be continued in that position.
It follows that the report of the referee should be confirmed and the respondent disbarred.
Patterson, P. J., Clarke and Houghton, JJ., concurred; Laughlin, J., dissented.
Dissenting Opinion
The specific- charge upon which the disbarment of the respondent is sought is that he converted to his own use the sum of $250, which belonged to a client, but the facts with respect to the receipt and detention of the money and the proceedings on the part of.the client to compel repayment are set forth. The learned referee in his report states briefly the facts he deems established by the evidence, and then. cites Matter of Cohn (120 App. Div. 378) as presenting “ A somewhat similar state of facts ” and concludes as follows “ Believing myself to be controlled by this decision, 1 have no option hut to report as my opinion,, upon the facts of this case, that the respondent should be disbarred.”
I am of opinion that the two cases are clearly distinguishable on the facts. It clearly appeared not only that Cohn misappropriated his client’s money, but that he intentionally concealed the facts from her by -misrepresentations nearly six years, and when his wrongdoing was discovered, he denied it and claimed the right to retain a considerable part of the money in payment of an exorbitant fee charged to her and neither made nor offered to make restitution until a commitment for contempt, of which he had been adjudged guilty, was about to be executed. Moreover, in answer to the disbarment proceedings, Cohn asserted the false claim that he received the money for the purpose of investment, gave false testimony and destroyed checks and check book which would have been the best evidence. In the case at -bar. there is nothing in the priginal transaction by which the client delivered the money' to O’Sullivan to justify criticism or warrant suspicion of a design on lii's part to profit by it personally. Mrs. Meyer delivered the money to O’Sullivan on the 17th, day of March, 1903, and he, at the same time, without request dr suggestion from her, delivered to her' a receipt reciting the substance of the agreement under which he received it, as follows :
“ March 17th, 1903.
“ Received from Mrs. Emily Meyer three hundred dollars, to be used for legal services in procuring a discharge from State’s Prison of her husband, Adolph Meyer; two.hundred' and fifty dollar's to be returned in case said prisoner is not discharged.
“ $300.00. MICHAEL O’SULLIVAN.”
The judgment in the Municipal Court was recovered under the rule of preponderance of evidence, which obtains in civil actions even' to recover a penalty or involving criminal acts with the qualification as to acts constituting a crime that if they be susceptible of. an innocent construction the defendant must be given the benefit of that construction. (Kurz v. Doerr, 86 App. Div. 507; affd., 180 N. Y. 88; Serra v. Brooklyn Heights R. R. Co., 95 App. Div. 159; Wood v. Wyeth, 106 id. 24.) The judgment in the Munici pal Court was admissible in this ■ proceeding, for the effect upon the public of its recovery against the attorney is an item to be considered in determining whether he is a fit man to retain a license to practice. (McCarthy's Case, 42 Mich, 71; Fairfield County
There are some inconsistencies in the position and claims of the attorney from time to time, and in his testimony; but, as he is not now upon trial for them, they may only be taken into consideration in determining the punishment after his conviction of some charge upon which he is upon trial. I am of opinion that the specific charge of conversion should not be deemed sustained by the evidence, but it does not follow that the proceeding should be dismissed. Although conversion is charged, yet the facts relating to the entire conduct of the respondent with respect to this transaction are set forth, and professional misconduct is charged broadly thereon. There is no evidence of deception or dishonesty on the part of the attorney in his relations with his client, but for failing to preserve her money intact and to exercise greater diligence in causing -the presentation of the application for the pardon, and for failing to return the unused balance of the fund to her promptly upon learning that the application for the pardon had been denied, he should be disciplined by suspending him from practice for the period of six months. ,
Respondent disbarred. Settle order on notice.