In re Lent , 137 N.Y.S. 1052 ( 1912 )

Ingraham, P. J.:

The respondent, an attorney and counselor at law, is charged with professional misconduct in receiving two checks, the property of the estate of Thomas Stafford, of which the respondent’s client, Marie Stafford, was administratrix, for deposit by him with the Fidelity Deposit Company which was surety on her bond as administratrix,, collecting the proceeds thereof and converting the same to his own use. One of these checks was drawn to the order of Marie Stafford, administratrix of Thomas Stafford, and the other to the order of the estate of Thomas Stafford, and both were received by the respondent, acting as attorney for the administratrix as assets of the estate. The first check he presented to the administratrix, asked her to indorse it, stating that it was to be deposited with the surety company, and after she had indorsed it he took it with him; but, instead of making such deposit, he collected it and converted the proceeds to his own use. This check was dated August 28, 1909, and was for- $1,000. The second check was also received by the respondent as attorney for the administratrix. He took it to her and asked her to indorse it, stating that he would go down immediately and place it with the bonding company. This check was dated April 29, 1910, was for $675, payable to the order of “Marie .Stafford, Administratrix of the Estate of Thomas Stafford.” It was indorsed by the administratrix and subsequently by the respondent. In July, 1910, the administratrix went to the surety company and then for the first time learned that the respondent had not deposited the checks with it. Shortly after this the respondent wrote her a letter stating that he would go down on Thursday or Friday and pay the money to the surety company, and then follows a series of letters written by the respondent to his client promising to repay the money to her.

The respondent admitted that he owed the administratrix $1,690; that he had received the money coming to the estate on these checks, and that he had appropriated them to his own use and has never repaid it.

The respondent was then called on his own behalf and said that the complainant employed him in June, 1908, as attorney for the estate. He tries to make out a case of rendering professional services in two estates of which the complainant was administratrix, but it is quite evident from the testimony that the services he rendered were unimportant. There was no litigation, and the estates were comparatively small. He testified that he asked the administratrix to allow him to use the money represented by these two checks and that on that statement she indorsed the checks and delivered them to him. The total amount of the estates for which this money was received was about $2,000.

The referee has found that the respondent agreed to deposit this money with the surety company and obtained her indorsement for that purpose; that he violated his agreement, collected the money, used it for his own purposes and has never repaid it. The checks .were to the order of the estate. Until the estate was settled the administratrix had no authority to use the money except in settlement of the affairs of the estate, and it would have been a violation of the administratrix’s duty to have loaned this money to the respondent or for the respondent to have used it even with her consent; but the referee has found that the testimony of the respondent as to the circumstances under which he received these checks was false; that the respondent received the checks for the purpose of delivering them to.the surety company, and, in violation of that promise and his obligation to his client and to the surety company, he collected the money and appropriated it to his own use, and, after an examination of the testimony, we agree with the referee.

But one result can follow and that is that the respondent should be disbarred, and it is so ordered.

McLaughlin, Laughlin, Miller and Dowling, JJ., concurred.

Bespondent disbarred. Order to be settled on notice.