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Charges by the Association of the Bar of the City of New York against Smith Lent, an attorney, for professional misconduct. Ordered disbarred.

See, also, 149 App. Div. 947, 134 N. Y. Supp. 1137.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, MILLER, and DOWLING,' JJ.

Henry A. Stickney, of New York City, for petitioner.
Smith Lent, of Sing Sing, pro se.

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 and 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, and 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,

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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. All concur.

CASCADE HOTEL CO. v. ORLEANS REAL ESTATE CO. (Supreme Court, Appellate Division, First Department. November 8, 1912.) 1. JUDGMENT (8 109*)-DEFAULT.

Plaintiff's counsel answered "Ready" on the day for trial, and defendant's counsel presented an insufficient affidavit for adjournment, which was denied, and the court directed a jury to be impaneled, when defendant's counsel stated that he "refused to go on with the case," and left the courtroom, but returned and stated that he had an undefended divorce case at Special Term, whereupon, on request of the trial judge, the Special Term justice agreed to hold the divorce case until trial of the present action, when the judge directed the defendant's counsel to exam. ine the jury, whereupon he stated that he would take no part in such examination and left the courtroom. Held, that defendant had suffered a deliberate default.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. $$ 160, 162, 179;

Dec. Dig. $ 109.*] 2. JUDGMENT (8 163*)_DEFAULT-VACATING.

Where the moving papers show no satisfactory reason why defendant should be relieved from a default judgment, it is an abuse of discretion to set it aside.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. $ 323; Dec. Dig. $ 163.*] Appeal from Special Term, New York County.

Action by the Cascade Hotel Company against the Orleans Real Estate Company. From an order vacating a default judgment for plaintiff, it appeals. Reversed, motion to vacate denied, and judgment reinstated.

See, also, 135 N. Y. Supp. 1103.

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and DOWLING, JJ.

Otis & Otis, of New York City (A. Walker Otis, of New York City, of counsel), for appellant.

Bennett E. Siegelstein, of New York City (Albert I. Sire, of New York City, of counsel), for respondent.

PER CURIAM. The action is for conversion. This case appeared upon the Trial Term calendar for trial for Monday, June 17th. The calendar was published in the Law Journal on Saturday, June 15th, on which day counsel for the defendant called up the plaintiff's counsel by telephone and said, "I suppose you will be ready for trial on Monday," to which plaintiff's counsel replied, "Yes, I will be ready.” Upon Monday, upon the call, counsel for both sides appearing, the case was marked "ready.” At the opening of court, after recess, the calendar was again called, and the case again marked "ready." On June 18th the case was the sixth on the day calendar and was marked "ready." On June 19th it appeared as the third case on the day calendar. Counsel for plaintiff answered, “Ready," and counsel for defendant presented an affidavit of the president of the defendant company, which the judge presiding declared to be insufficient to obtain an adjournment, in which he was clearly right, and directed a jury to be impaneled. Counsel for the defendant then said, “I refuse to go on with the case," and left the courtroom. Thereafter, and before the case was opened, he returned with the attorney of record, who stated that he had an undefended divorce case at the Special Term, Part III, for trial. The justice presiding at the Trial Term sent to the justice presiding at the Special Term, who agreed to hold the undefended divorce case until the termination of the trial of this action. The trial justice then directed defendant's counsel to examine the jury, whereupon defendant's attorney stated, "Your honor will note the defendant declines and will not take part in the examination of the jury,” and thereupon left the courtroom with counsel.

[1, 2] It is apparent that the defendant suffered a deliberate default, and the moving papers disclose no satisfactory reason why it should be relieved of said default. The setting aside of the judgment and reinstating the case for trial was, therefore, an abuse of discretion.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate denied, with $10 costs, and the judgment reinstated.

PEOPLE ex rel. RAY v. MCANENY, President of Borough of Manhattan. (Supreme Court, Appellate Division, First Department. November 8, 1912.) MANDAMUS ($ 76*)-CIVIL SERVICE-ABOLITION OF POSITION-VACANCY-AP

POINTMENT.

Civil Service Law (Consol. Laws, c. 7) $ 22, as amended by Laws 1910, c. 264, provides that, where a position in a classified service is abolished,

*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the head of the department shall furnish the name of the person affected to the civil service commission, with a statement and the date of his original appointment. Held, that where relator was employed as fore. man painter in the bureau of buildings, and his position was abolished and his name certified as provided by section 22, there was no existing vacancy, nor was the president of the bureau required to create a vacancy by the removal of some other person for his benefit, and he was not entitled to mandamus to compel his reinstatement.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. 88 158-160 ; Dec. Dig. $ 76.*] Appeal from Special Term, New York County.

Petition by the People, on relation of Samuel Ray, for a writ of mandamus directing George McAneny, as President of the Borough of Manhattan, to reinstate the relator to the position of foreman painter in the Bureau of Buildings. From an order denying a writ, relator appeals. Affirmed.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

Alfred J. Talley, of New York City (Denis R. O'Brien, of Brooklyn, on the brief), for appellant.

Archibald R. Watson, Corp. Counsel, of New York City (Elliott S. Benedict, of New York City, of counsel, and Terence Farley, of New York City, on the brief), for respondent.

PER CURIAM. The order appealed from should be affirmed, upon the ground that the relator has not shown that there is any vácancy existing to which he could be appointed, and that the respondent is not required to create a vacancy by the removal of some other person for his benefit. Matter of Breckenridge, 160 N. Y. 103, 54 N. E. 670; People ex rel. Chappel v. Lindenthal, 173 N. Y. 524, 66 N. E. 407; Matter of Gilfillan, 127 App. Div. 846, 111 N. Y. Supp. 808, affirmed on opinion below 193 N. Y. 655, 87 N. E. 1119; People ex rel. Forest v. Williams, 140 App. Div. 723, 125 N. Y. Supp. 583; Barton v. Brannan, 141 App. Div. 295, 126 N. Y. Supp. 47.

The position that he occupied has been abolished. No one has been appointed in his place, and the command of the statute (section 22 of the Civil Service Law [chapter 7, Cons. Laws; Ch. 15, Laws 1909), as amended by chapter 264 of Laws of 1910), that "it shall be the duty of the head of the department or office in which such persons had been employed to furnish the names of the person or persons affected to the state civil service commission, with a statement in the case of each, of the date of his original appointment in the service," has been complied with.

The order appealed from should be affirmed, with $10 costs and disbursements. •For other cases see same topic & S NUMBER ID Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

9

PEOPLE ex rel. BEHARKA V. NATIONAL SLAVONIC SOCIETY OF THE

UNITED STATES OF AMERICA et al. (Supreme Court, Appellate Division, First Department. November 8, 1912.) MANDAMUS (8 125*)-MEMBERS-EXPULSION.

The courts of New York will not exercise jurisdiction by mandamus to compel a beneficial association, which is a foreign corporation, to re. instate an expelled member as a member of a nonresident lodge, though the association was authorized to do business in New York.

(Ed. Note.—For other cases, see Mandamus, Cent. Dig. 88 259, 260; Dec. Dig. § 125.*] Appeal from Special Term, New York County.

Application by the People, on the relation of Mathias Beharka, against the National Slavonic Society of the United States of America and others. From an order granting relator an alternative writ, respondents appeal. Reversed, and motion denied.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and DOWLING, JJ.

Joseph H. Kohan, of New York City, for appellants.
Alfred B. Jaworower, of New York City, for respondent.

PER CURIAM. This case differs from the case of People ex rel. Ruman v. Natl. Slavonic Society, 144 App. Div. 574, 129 N. Y. Supp. 603, in that it appears in this case that the parent society, a membership corporation organized under the laws of the state of Pennsylvania, has been authorized to do business in this state. But it is none the less a foreign corporation. The relator is a nonresident, and the subordinate lodge from which he was expelled is not a resident lodge of the state of New York. Under such circumstances, the courts of this state should decline jurisdiction, even if they have it.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

OLIVER REFINING CO. V. ASPEGREN et al.

(Supreme Court, Appellate Division, First Department. November 8, 1912.) 1. APPEAL AND ERROR (8 866*)—QUESTIONS REVIEWABLE_WITHDRAWAL OF

CASE FROM JURY-QUESTIONS OF Fact.

Where, at the close of the trial, the court, with the acquiescence of both parties, withdrew the case from the jury and directed a verdict, there are no disputed questions of fact to be considered on appeal.

[Ed. Note.--For other cases, see Appeal and Error, Cent. Dig. 88 3467–

3475; Dec. Dig. 8 866.*] 2. BBOKERS ( 39*)-COMPENSATION—"COMMISSION."

The idea of the word "commission" involves the meaning that a sum of money is paid to an agent for effecting a sale to a third person; and, while it is not customary for a seller to pay a commission to a pur

chaser, it is competent for a seller to offer a purchaser a rebate and call •For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

137 N.Y.S.-67

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