In re the Presentment by the Grand Jury , 293 N.Y.S. 640 ( 1937 )

Davis, J. (concurring in result).

The determination in respect to the questions of fact concerning conspiracy, embracery, and false testimony amounts to the Scotch verdict of “ not proven.” We are limited to the charges presented.

As to Ms refusal to waive immumty as a witness, he had the right to rely on the privilege given Mm by the Constitution. When a public official or an attorney asserts that right, he must expect that unfavorable inferences will be drawn by the public generally in the absence of a satisfactory explanation. So it is with others who take refuge beMnd such constitutional protection. Standing alone, the refusal of an attorney to waive immumty is not a sufficient ground for disbarment, particularly where the lawyer did in fact testify, thereby gaimng immumty, and it did not appear that his refusal was entirely arbitrary and without reason.

The recommendation of the official referee as to charges numbered I, II, III and IV is confirmed. As to charge numbered V the recommendation is overruled. The proceeding is, therefore, dismissed.