*1 128 BEPOBTS, STEW YOBK CRIMINAL VOL. XXXVIII. LAW,
NOTE
PENAL
ON
§ 270.
A
person
contract made
conducting
agency
a
an
for the collection of
illegal
provisions
270,
accounts is
and void under the
Law,
of section
Penal
appears
person
where it
attorney
that such
is
an
and that the contract
provides
action,
necessary,
for the institution of an
if
for the collection of
Lietz,
Buxton v.
N.
829;
136 Y.
account.
S.
affd. 139 N. Y.
46.
S.
judgment
A
in
Municipal
entered
City,
Court of New York
on the
person
motion of
practice
state,
attorney
admitted
as an
in the
void,
may
impeached
is
and
proceedings by anyone
collateral
with
rights
defect,
whose
or interests it
conflict.
however,
Proof of this
party
is
attacking
judgment
inadmissible where the
alleges
is
specific grounds only.
McGonigle,
defective on other
“Penna v.
COURT OF APPEALS. 9,
December I9I9. THE v. TITLE PEOPLE GUARANTEE AND TRUST
COMPANY. (227 366.) N. Y. by corporations—Penal (1) Law, 280. § Practice which, occasion, single giving any A on a without advice leading therein, prepares’ consummated a bill of sale and chattel mortgage by filling upon specific out accordance blanks with the customer, purported rendering legal is not direction services or holding itself out as entitled to law. V. PEOPLE TITLE GUARANTEE AXD TRUST CO. *2 drawing op op mortgage by (2) Same—When bill and sale chattel GUARANTEE TRUST COMPANY NOT VIOLATION OP STATUTE. TITLE AND A THE printed kept Defendant and for distribution a booklet of the which page entitled, cover and each were "Fees for the Examination of statement, counties, Titles.’’ was There contained in it the "In all drawing for recording papers fees and surveys and for fees are in regular charges. Survey addition to charges the pages are found on 17-28 and charges drawing recording for papers pages and on 29 and 29, page 30." On which had the heading, "Average Charges additional Drawing Papers," for item, was found the "Bill of (Brooklyn Sale Queens) & $3.00." Two appellant’s detectives of place visited the busi- They explained appellant’s employees ness. of one of them one selling was a given store the other for a sum and that he desired a bill mortgage of sale and chattel gave employee be drawn. He the response request in to his of therefor a list the merchandise which it employee passed was claimed involved. This then the detectives to employee, another who pencil took and in filled out blank of a forms sale, mortgage appear chattel and bill of do which to have been prepared by appellant, gave the stenographer them to a to be finally stenographer employee, filled out. This returned them to the last over, placed them, inquired who looked them a seal on the rate of interest and stated that the date of execution which blank was left could be filled in papers' preparing when the For thus papers executed. these fees w.ere charged paid. were has been The convicted of a viola- of prohibiting tion section 280 of Penal Law of law Held, legal by corporation. given rendition of services a that the did not acts constitute of law or rendition of charge' such acts as had been committed to the exclusive of attorneys, layman might performed those which but were be at the being subject pun- time these acts were committed without to criminal Held, further, light of all of the derived ishment. evidence price drawing from this of is to booklet advertised for bills sale lawfully might prepared regarded applicable to as an as those which business, regarded regular adver- and is not to be as an incident soliciting engaging in the holding out the as tiseriient to the drawing bills of sale such maimer as would amount business of 334, distinguished.) (People Alfani, 1ST.Y. practice of law. v. 227 648, Co., A.pp. & 37 N. Y. Crim.
People v. Title Trust 180 Div. Guarantee 102, reversed. Appeal of Division of the from the Appellate judgment Court the Second Judicial entered Supreme Department, affirmed a Court 14, 1917, December of the judgment of New York Sessions city convicting Special XXXVIII. VOL. STEW YORK CRIMINAL 280 of the Penal Law violation of section defendant law without license. practicing far are The so stated facts, material, opinion. Kresel, E. J. Harland B. Tibbets Charles Isidor Hughes, P. out and and James Judge, appellant. filling of bill sale chattel of blank forms delivery the circumstances this case did not constitute practicing within the of section 280 Law. prohibition Penal 36 N. Y. v. Western 653; Investment (Matter Persy, Tiger *3 Co., 221 286; U. S. Matter of Law 198 N. Y. Co-operative Co., 479; Matter of New 144 York, 107, of Div. 204 App. City Y. U. N. S. Title Co. v. 86 Misc. 625; Brown, Guaranty Rep. 688, 166 Div. N. Y. 287, 628; 217 ex rel. People Trojan App. v. 702; 174 Div. ex rel. Realty Purdy, Corp. App. People v. 221 Y. Floersheimer N. Matter of 68 481; Bensel, Purdy, Misc. 70; Meisel & Co. v. National Rep. Jewelers’ Board of 90 Misc. 19; of Trade, Matter Associated Rep. Lawyers Co., 134 Div. The defendant cannot be held App. 350.) criminally for acts of its responsible which were not unau employees only thorized but were contrary express instructions. (New York Central Railroad v. 212 S.,U. U. S. 481; v. People Sheffield 149 Farms, Div. 206 App. 923, N. Y. v. 79; People New York Centadrink 152 Co., Div. 207 N. App. 912, Y. . 736.) Lewis, E. District
Harry
E.
Attorney
Hemstreet
(Ralph
G. Anderson of
Harry
counsel),
respondent. The
acts defined
information,
with the commission of
which the
appellant
constitute
charged,
practicing
within
280
of section
Penal
meaning
Law,
in that
do
exceptions specified
section
not apply.
(Morgan v.
2
Van
Johns. 204; Cornell Bank v.
Ingen,
49 N.
Varnum,
Y.
269;
v.
Trust
180
People
Co.,
People’s
Div.
App.
494; People
56 Colo.
v.
441;
v. Taylor,
People
Schreiber, 250 Ill.
22
345,
131
V.
AND TRUST OO.
TITLE GUARANTEE
PEOPLE
v.
56
Paul,
State
785;
Law
Ed.],
Encyc.
Am. & Eng.
[2d
181;
v. Heffernan,
State
v.
59 Me.
Neb.
Bibber
369;
Simpson,
v. Mul
226;
20;
Iowa,
28
I.
v.
132
Wilhite,
People
R.
State
v.
202
Y. 624;
Phippin,
140
Div.
N.
716,
People
ford,
App.
ais
organ
Hiscock, The appellant, under originally incorporated another name, *4 ‘‘ was authorized bonds and guarantee and mortgages titles ” “ to real estate; and to make and cause to be made and to and to for all purchase pay searches, abstracts, indices, maps records copies as the trustees thereof deem for necessary,” time has long been in engaged of this prosecution business.
It has been convicted of a violation of section 280 of- the Penal Law prohibiting practice rendition or services legal corporation and of which section the pres- “ material ently read provisions as follows: It shall be unlawful * * * for any corporation to hold itself out to the public entitled to being law, or to practice render or furnish legal services or advice, or to furnish or attorneys counsel or to render services of kind in any actions or proceedings XXXVIII. VOL. HEW YORK CBIMIHAL BEPOBTS, in other manner, in any nature or other
any any way ** * . law, manner to assume to be entitled * * * law- This section shall not apply any corporation real the examination and of titles to fully insuring engaged * * * as amended But no (and 1916). property, render shall be which permitted not admitted to cannot person rendered lawfully law in this state.” The evidence which if at all the conviction of upon must rest is in substance as follows: for distribution booklet of Appellant printed kept “ which the cover and each were entitled Fees for the page Examination Titles.”- in it There was contained the state- “ In all fees for ment, counties, drawing recording papers and fees for are in addition to the surveys regular charges. are found on 11—28and draw- Survey charges for pages charges on 29 and 30.” On ing recording papers pages 29, page “ had the additional heading, Average Charges “ was found the Bill Drawing Papers,” item, of Sale (Brooklyn $3.00.” & Queens)
On the occasion of the commission of its offense two alleged detectives for that employed visited the appellant’s of business in place Brooklyn. directions Following given answer to their inquiries came to they one of appellant’s to whom one of the employees, detectives explained he was a store to the selling other for a of which given sum, part to be and that paid cash, he desired a bill of sale and chattel to be drawn. mortgage He gave em- appellant’s ployee, to his response request therefor, a list of the mer- chandise which it was .claimed was involved. This employee then passed detectives to another who employee, took and filled out in blank pencil forms aof chattel and bill *5 of sale, which do not to appear have been the prepared by appellant, them gave to a to be stenographer finally filled out. This stenographer returned them to the last employee, who looked them over, a seal placed on them, the inquired rate CO. AND TRUST
PEOPLE V. TITLE GUARANTEE of was execution, of interest the date which and stated that in the were- executed. blank, left could be tilled when papers For thus these fees were charged paid. preparing papers some that some occasion
There was evidence on subsequent instrument of the of some other employee appellant prepared in same kind as those involved this general proceeding. final
In the of the substantial and consideration question to us we can eliminate certain presented provisions readily certain which have been statute and evidence questions the the in the statute subject Manifestly discussion. provision “ * * * to that it shall not any corporation lawfully apply in examination and of titles real the to insuring engaged ” this not be taken So far as concerns is to property literally. if its small arises case, controversy respect meaning. it one it is not denied that would the side seriously permit On to the acts are or save to the do which appellant, right, involved if were an incident to its business and were here they a title which was to insurable condition place the submitted it for On other it is hand, guaranty. that it would enable instru- the argued appellant prepare ments which it did if on occasion were prepare they thus incidental to and with the conduct its connected authorized business, otherwise prohibited. think of its we
Under this interpretation powers referred is ineffective evidence furnished booklet We think that sustain conviction. light present adver- all of the evidence derived from this booklet price as hills of is to sale drawing regarded applicable tised as an incident prepared to those which might lawfully as an to be advertise- business is not regarded regular soliciting engaged out ment holding manner as would bills of sale drawing business of Also, in the view we of law. to the amount instrument similar subsequently the evidence take, We of no importance. employees appellant’s prepared *6 NEW YORK XXXVIII. CRIMINAL VOL. - . do think fairly of which there is word evidence sustains the contention of the prosecution appellant’s were asked or did employees advice give leading of the respect instruments were prepared. of and freed from inconclusive features
So, unsup- stripped evidence, claims consideration eliminating any ported vires, ultra of the the bare decisive principle inquiry becomes whether a without corporation which, giving any therein, advice consummated a bill-of leading prepares sale and chattel out blanks and in upon filling accordance with the direction of a customer specific purported services or itself out as entitled rendering legal holding law. Under the practice circumstances of this case the general is reduced to the inquiry narrow whether this really one amounted to as we rendering legal services, for, have pointed there is out, no evidence that the held itself out as entitled to law unless it did so by performing legal law would be whereby I think practiced. that a answer negative must be to this given inquiry.
In of the decision and at the approaching question outset we to consider what must ought have been the of the n the statute. Legislature That enacting purpose seems obvious. There are certain fundamental requirements . features our which, according conception state, attend and surround the of law and rendition of truly legal services. These are possession .the sufficient knowledge skill, the existence of a of trust and relationship confidence which the client upon and the may securely rely, power courts to use if summary proceeding to enforce on part observance of the attorney and duties obligations out of this A growing could relationship. with and adequately subject itself to these comply requirements if there no statute. penal Through employment as attorneys agents meet the might fairly requirements skill and knowledge, but it ordinary legal responsibility, could *7 TRl'ST AXB CO. PEOPLE AL TITLE tiVARAXTEE to subject and be a of confidence not establish relationship (Matter individual can. control as an attorney summary 479.) Co., the statute Therefore, Law 198 N. Y. Co-operative forbid a corporation to undertakes by provisions prohibitNe to do Avhat.it or satisfactorily to or cannot pretend attempt and out. as an professing itself attorney by do, by holding fully such a nature that performance services of to .their perform and methods Avhich those safeguarded by principles to be ought a cor and be to applied individual cannot can be to an applied a from simu This to corporation prevent poration. purpose to render an from essaying the character of lating attorney the of the statute. such services is indicated language clearly by “ as an to or is forbidden corporation practice appear ” larv it a to an at or to make business practice “ attorney ” “ ” larv at larv to be entitled to practice -or to assume attorney “ or the or assume, use or advertise title of laAvyer attorney, in such at or terms in larv, attorney equivalent any language manner as to is entitled convey impression law.” hand,
On other no reason suggested why convincing be an act which a should corporation punished performing it has of confidential character because of lack simplicity the exclusive care of not been to confide to thought Not but be which may performed by attorneys, layman. itself, of the dic- common but statute only sense, wording This in that amendment to the tates this view. appears that the not statute after section should which, apply provisions “ in certain reads: But no cases, corporation corporations which shall be to render cannot permitted lawfully be not admitted to rendered by person This state.” sentence characterizes the of the entire purpose and outlines the final test. Various direct and statute specific conducive prohibitions exceptions special exceptions have enacted, like that been but applicable end avc come declaration whatever else controlling NEW YORK CRIMINAL VOL. XXXVIII. may have been shall said, to do permitted law or anything way practicing services which could not be rendering legal performed by That sums final layman. up legislative thought sug- gests which, the standard if there be inadvertence or doubt elsewhere, the character of a act given may measured. in the
Thus, of this light apparent statute, the absence of it seems that the specific definitions, best test controlling to determine whether the given *8 acts constituted of law or rendition of the answer to be to the by whether given underlying inquiry such acts were ones which had been committed to the exclusive or were charge those which be attorneys might performed a In by I layman. not it as do decisive inquiry regard that an act is one which is an performed commonly by attorney. That abe matter of habit or might convenience. The inquiry is rather whether it is one which might lawfully performed a This by is to be layman. decided the nature of the act by and not by who most identity frequently individual it. That in performs effect has been determined times many the courts when have refused to their hands lay summarily an upon for the attorney correcting transgressions in a transaction which was not undertaken him in his by character of attorney. has with much and argued vigor learning that notaries
proposition public scriveners foreign countries, without especially England, admitted to the being from time bar, immemorial have been to do con- permitted and from these historical facts draws the veyancing, conclusion that notaries analogy public are entitled laymen to draw in this state. The conveyances of notaries history scriveners does somewhat this view. support While these men were to their for compelled avocation and prepare their admis- sion and were to subject practices rules and regulations they nevertheless were not admitted fully members of the legal pro- CO. TRUST AND V. TITLE GUARANTEE
PEOPLE was it while that the inference flows and therefrom fession, it was necessary have should preparation, that they thought com- should be fully that not they regarded to render in order members of legal profession pletely these services. in favor of I think there is a argument
But stronger was that these occurrences contention at the time of layman here as those such instruments simple draw permitted criminal involved were without subject punishment. being custom widespread notice of take judicial We may in this state, doing time from out of memory has prevailed such have draw been accustomed so know laymen we accommodation as matter of instruments, merely not It would friends- and but for pay. probably neighbors, rural communities more too much to many say it was drawn than course if laymen by attorneys, for a an instrument in such lawful draw such layman in a While the also lawful more urban one. community we not. differentiate those could Legislature conditions, might such com- Moreover, has been confined *9 men munities. We know that cities constantly engaged the their real estate business and banks have for prepared customers such instruments without or criticism. doubt not section 280 of when it enacted only
The Legislature, have but also the Penal which we been Law, considering, an section, to of law individual 270, ¡relating practice by with the admitted and registered, charged without being and with which same customs knowledge practices prevailing we members oftentimes doubtless knew, are Its chargeable. and and that observation by practical lay- personal experience, men as are state such services throughout rendering here and but inher- involved. Not custom practice only by by ent had the to do this unless forbidden by privilege they right if a and intended to statute, prohibit the Legislature widespread and it was so establish a new rule practice to duty say YORK CRIMIEAK VOE. XXXVIJLI. SEW and in the to clearly statute.relating practice unmistakably individuals. It did of law and rendition of services by in that and there is not to be found so, say my opinion section of the Penal Law the rendition any provision against n an individual. tibiiük same idea of such services We by is as in section that an individual who is not 280, emphasized admitted an to must not assume character of practice “ an at law. He is forbidden or as attorney to practice appear at law or an and to law,” as counselor at or attorney attorney make it a to an law an business “as at or practice attorney at out law,” counselor or to hold himself to the attorney “ as as entitled to aforesaid or public being' practice “ ” or other manner assume to be an any coun- attorney' at But selor law.” which can there nothing fairly as an intention abolish an regarded indicating existing a widespread with- prevent layman out simulation of or any to the character of an pretense attorney from a instrument his drawing as instructed customer simple and not advice then involving predicated upon any legal given.
When subsequently Legislature, with knowl- chargeable edge fact under the enactment of section 270 of the Penal Code it was still for permissible draw such an layman instrument, enacted section 280 and in the with the language qualifications we have do think mentioned, we it would be fair or reasonable hold interpretation to intended prevent from bill of sale or drawing simple chattel which from a could have legal standpoint been drawn the state. It was layman to cover and easy prohibit *10 such if so transactions intended, we do not think that we should strain to discover such intention in the absence of some it. language clearly expressing
In to reach decision of seeking proper the question before us we not to considerations ought ignore of public convenience
PEOPLE V. TITLE GUARANTEE AXD TRUST CO. of ordi- transaction in the every as involved day and economy so statute matters. If provisions business nary of doubt was beyond range clear that their meaning such con- influenced we not be of course could debate, able But not. very argument sideration. are they that persua- sufficient evidence made on each side is has been in favor of a decision of be marshalled sive reasons might can we those circumstances Under either way. question take we can indicated, been results. As has consider practical prepare laymen of the widely existing practice notice unlawful us. If it is before instruments like those simple or bill a chattel the blank form for to fill out various other simple it be sale, would so to prepare equally n instruments laymen which are commonly prepared by now the trouble and it would be banks, undergo which really acts an summoning attorney perform expense I if the his services. that say, Legisla- do not require Again, the transaction ture intended to command change There can business should have said so ordinary clearly. no debate of the standards of proposition should be maintained at a level. Every- profession very high has had knows that much more harm comes one who experience from the and carelessness than from the public ignorance who the intentional misconduct of those have succeeded But furnish law. this does not securing right of a to confer reason for so statute as meaning broadening the exclusive to render certain services upon attorneys right when- common performance long- incapable by layman established in a different and the points direction has not indicated an intent to Legislature existing fairly change conditions. also
We that it be difficult to draw a appreciate may logical under the line statute satisfactory dividing between us acts as are before and some It other one. well very the difference so marked between the transaction of *11 YORK XXXVIII. CRIMINAL VOL. NEW or bill of sale chattel simple the preparing deed of trust execution of preparation complicated that in these on will there would be no locating difficulty different sides the line. It be much more troublesome may the case. It would be worse to make location some other than futile to to formulate a rule universal attempt general which would cover cases. We must take care of the all prob- lems of future when arise. We at least settle those they which are now to us. presented
In I conclusion, what have said is not to be interpreted. manner as the of an expression opinion upon question which would arise if words or should corporation by acts out as in the hold itself business of engaged instru- preparing ments of the character involved other- proceeding and should so In ones do. the case v. decided Alfani, People we have held that a herewith, himself out layman, holding by as engaged preparation instruments by advice in connection with their giving execution, furnished evidence which he could be convicted of by himself holding out as entitled to public violation being section 270 the Penal Law. It that a quite possible some such conduct furnish might evidence it could be convicted whereby violation of the statute That relating corporations. does not seem to question me presented by present case, and therefore has not been considered.
For these reasons judgments should be reversed' the information dismissed. ; : J. (concurring) Pound, I have failed to agree people make out a case, but I desire to add a few words to make clear the reasons I have reached conclusion. on
Much be said the historical distinction between and scriveners and notaries, lawyers has been admirably *12 TEE TBUST CO. ABAN AND V. TITLE GP PEOPLE Div. (180 App. opinion the Putnam, J., dissenting done by Div. 468). App. v. Alfani (186 and in below 654) People law, occasionally the individuals, unlearned many Doubtless without instruments other wills, draw deeds, mortgages, term, of the common acceptance the legal rendering had criminally engaged be startled to learn who would they is to intent of The test of the legislative the law. evil the in the which found, however, legislation present day in the be, aims to The evil addressed seems to both correct. the of individual and the of case the corporation, services of the character now with some continuity, rendering, as a of their generally performed lawyers part ordinary or routine—not advice cases, merely trying giving preparing difficult but as ivell. papers, ordinary conveyancing Argu- ments based on ancient the and the rivalry attorneys scriveners; the continental rights privileges of unique and the convenient notary custom of to draw wills and laymen other instruments, to a legal give way must consideration of the well-known work of the modern law office. The legislation in aid is and for the the'lawyers, protection the public, and is to the antagonistic which would policy permit anyone act as a scrivener or habitually The conveyancer. question not is one of sound but public is one of policy, legislative policy merely. The lawyer’s profession does not cover calling of all preparation papers legal such as significance, promis- sory notes, are not as a lawyers rule resorted to, but I does, think, cover the of bills preparation sale and chattel I am unable mortgages. rest test on the satisfactory distinction between simple complex instruments.
most are complex simple the skilled and the often simplest trouble the Skill inexperienced. is when sought another is , do work. If employed the blank forms used trust are
companies prepared approved by their legal counsel, then, when clerks fill them out, the corporation tacitly advises the client that the forms are proper sufficient for XXXVIII. YORK VOL. NEW CRIMINAL would that he expect getting good one purpose, he had So advice, if thus papers prepared.
legal indirectly, test. If oral advice not satisfactory giving rendered, in this case are services as rendered customarily I think that should characterized as services. they does not that a real estate broker may imply prepare .This or that an installment house leases, deeds, mortgages conditional bills connection with the sale, prepare *13 as a business and thereof. part preparation legal be business of the actor or papers may ancillary daily it be the business itself. The be may emphasis may upon services of the broker or the business of the or it trader, n be law. upon not;
In the case before 'us I think that the defendant may make it a business to even for all prepare simple legal papers who apply, chartered The cor- independently powers. not, poration however, for the chargeable criminally isolated act of its as here employees, well occur charged, might otherwise than as an incident On general practice. evidence it does not out hold itself instru- preparing legal ments but in connection generally, with its only legitimate business.
For these I reasons, concur the result that the judgment should be reversed and the information dismissed.
Crane, J. (concurring) :
I with the chief agree but judge case, desire to reasons for so In express my doing. my judgment the Title Guarantee Trust could draw Company papers or any legal instruments or incident to its necessary chartered powers; is, could draw a chattel in connection mortgage with its a title or the of a closing placing This is mortgage. section 280 of the Penal prohibited by Law. The little pamph- let or circular a list showing prices for drawing papers must taken its face at value in the absence of other evidence and OO. TRUST AND GUARANTEE TITLE V.
PEOPLE instru- drawing for made the charges to be considered transactions estate real incident or ments when determined remains then It the company. conducted by a chattel drawing act of whether the single is an offense. company work hy other any with connected intention disavows any the company In the first place, whether legal drawing papers, a business of conduct attempt its regular from disassociated otherwise, instruments business. ordinary unlawful any makes it Penal Law 280 of the
Section to do the following: court. at law any as an attorney 1. To practice at law as an attorney it a business to 2. To make court. - to render law or legal 3. To hold itself out to practice services.
4. To furnish attorneys.
5. To render or manner. any way 6. In other manner to assume he entitled to *14 any practice law. n The aim of this section is at a or a business to do practice act. prohibited occurrence is not the evil single “ to be sought The words to render prohibited. services legal ” of kind in or any manner must be read in any way connec- tion with the whole provision have reference to a practice or a business of services in rendering manner. legal any Should the defendant or advertise conduct a business of draw- chattel ing or mortgages unconnected with papers its other authorized work it would be this laiv and be violating of a misdemeanor. guilty J., dissents upon
Cardozo, ground as he accepting, does, the of conception legal in embodied Judge opinion, he believes that Pound’s there was evidence before the triers of the facts sufficient to sustain of a vio- finding ' NEW YORK CRIMINAL VOL. XXXVIII.
latioii of the statute. J., and Crane, Andrews, Pound in JJ., separate concur memoranda, with Ch. J.; Hiscock, dissent in JJ., memorandum Chase, Collin, Cardozo, J.. Cardozo,
Judgments reversed, etc.
—
ON
NOTE
PRACTICE OF LAW BY ASSOCIATIONS
LAW,
PENAL
280.
§
It
corporation
settled that a
practice
cannot
law
directly
either
indirectly by employing lawyers
practice
to
for it.
Co-operative
Matter of
Co.,
Law