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executed by the administrator, was accepted. The obligation is not even for the same amount as the original obligation, but is for a larger sum, part of which was used to pay taxes, and the rest went into the hands of the administrators as part of the personal estate. The loan was not made on the faith of the original indebtedness, but on security which was thought to be ample. The purpose of the transaction was in part to pay the obligation of the testator, and by that payment that obligation was discharged, and in its place a new obligation, with different security, was substituted. After the lapse of years, that security turned out to be insufficient; but that does not justify a resort to the original obligation, which the parties did not intend to keep alive. The plaintiff had no interest whatever to protect in advancing money to discharge the obligation of the said testator, and in doing so was a mere volunteer. Koehler v. Hughes, 148 N. Y. 507, 42 N. E. 1051. She cannot, therefore, ask that an obligation be kept on foot which she expected to be extinguished. If it had turned out that for any reason the security accepted by her was invalid, a different question would arise. But she has had her security. She has been permitted to foreclose her mortgages, and now has judgments against the administrator for the deficiency. That is all she contemplated getting when she made the loan. She has merely been disappointed in the amount which the leaseholds sold for at foreclosure sale. But that may have been due to changed conditions, and it may have been due to a mistake as to the value of the leaseholds when the loan was made. Whatever the cause, it does not justify a resort to an obligation which all the parties intended to have discharged.

The administrator could not have created a valid lien upon the real estate directly by mortgage, and that result cannot be accomplished indirectly in the method attempted by the plaintiff in this case. The plaintiff accepted an obligation, enforceable against the personal estate, secured by mortgages on a particular part of the personal estate, and she must look to the obligation and the security on the faith of which she advanced her money. This result is not inequitable. If the mortgage given to Matilda Wall had been foreclosed, when payment was demanded in 1902, it is not at all unlikely that the one leasehold, upon which it was a lien, would have sold for enough to pay it. . At any rate, the two leaseholds were then considered adequate security for a larger sum.

The interlocutory judgment is reversed, with costs, and the demurrer is sustained, with costs, with leave to the plaintiff to serve an amended complaint, on payment of costs in this court and in the court below. All concur.

In re QUITMAN. (Supreme Court, Appellate Division, First Department. November 8, 1912.) 1. ATTORNEY AND CLIENT (8 40*)—DISBARMENT-DECEIT IN PROCEEDING FOR

ADMISSION TO BAR.

Where one, who had been imprisoned in the state reformatory upon a conviction for crime, applied for admission to the bar, and suppressed the fact of his conviction, presenting a certificate, purporting to be signed by an attorney, which certified that he was a clerk in such attorney's office during the time of his imprisonment, the fraud practiced on the court would justify the disbarment of the attorney thus obtaining his admission.

[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. 8 58;

Dec. Dig. $ 40.*] 2. ATTORNEY AND CLIENT (8 44*)—DISBARMENT-PRACTICING FRAUD AND DE

CEIT ON CLIENTS.

The defrauding of clients out of considerable sums of money, and the failure to perform services for which he was employed and paid, would justify the disbarment of an attorney.

[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. 88 55,

56, 62; Dec. Dig. $ 44.*] 3. ATTORNEY AND CLIENT (8 38*)-DISBARMENT—PERMITTING DISBARRED AT

TORNEY TO PRACTICE IN HIS NAME.

Where an attorney permitted a disbarred attorney to practice law in his name, such act disqualified him from any right to further practice.

[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. $8 51, 61; Dec. Dig. § 38.*]

Appeal from Judgment on Report of Referee.

Disbarment proceedings by the bar of the City of New York against Max D. Quitman. Respondent disbarred. See, also, 148 App. Div. 891, 132 N. Y. Supp. 1144.

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

Keyes Winter and Einar Chrystie, both of New York City, for petitioner.

Irving E. Zeigler, of New York City, for respondent. INGRAHAM, P. J. [1] The very careful and exhaustive report of the referee renders it unnecessary to consider the facts of this case in detail, and we approve his conclusion that the charges have been fully proved. It appears that prior to the 8th of February, 1887, the respondent had been in the employ of Henry M. Goldfogle, an attorney at law, and that on that date the respondent was convicted in the Court of General Sessions for the City and County of New York of having taken and harbored one Kingsburg, a female under the age of 16 years, for the purpose of prostitution, for which he was sentenced to be imprisoned in the state reformatory at Elmira; that he remained at said institution until November 2, 1889, when he was released on parole and was re-employed by the firm of Goldfogle & Cohen, attorneys at law, in a clerical capacity; that subse•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes quently, in the month of February, 1891, he applied for admission to the bar in the Second department. On that application he sup

. pressed the fact that he had been thus convicted, and presented to the court a certificate, which purported to be signed by Mr. Goldfogle, which certified that the respondent had commenced a clerkship with him at his office on the 1st of February, 1882, and had continued such clerkship up to the date certified, and that he was a person of good moral character. That this certificate was false upon its face is apparent, from the fact that from the 8th of February, 1887, until November 2, 1889, he was in the Elmira reformatory under a judgment convicting him of the offense before stated. Certainly his moral character after having been convicted of such an offense was open to question. The referee finds, and it is quite clear from the evidence, that the attention of the court or its committee on character was not called to the fact of this conviction or imprisonment, and the respondent was admitted to practice upon what purported to be a certificate from Mr. Goldfogle that during this period the respondent had been a clerk in his office and that he was of good moral character. This fraud practiced upon the court would of itself require the respondent's disbarment.

[2, 3] The other charges against the respondent, consisting of fraud and deceit practiced upon the clients of the respondent and Hochstadter in their practice, would also require the respondent's disbarment. These facts are stated at length by the referee in his report,

. and establish the fact that the respondent and Hochstadter together were engaged in most disreputable practices, which resulted in cheating their clients of considerable sums of money and their failure to perform the services for which they were employed and paid. The conduct of the respondent in establishing the relation that he did with Hochstadter after his disbarment, and thus enabling Hochstadter to practice law, notwithstanding his disbarment, calls for the severest condemnation, and would of itself require the disbarment of the respondent. It is quite evident from the testimony that Hockstadter was really practicing law with the respondent with the respondent's consent. If this should be allowed, an order disbarring an attorney would be of no effect. When a man is disbarred from the practice of the law, any attorney who knowingly allows such an attorney to practice in his name commits an offense which disqualifies him from further practice.

The conclusion of the official referee is approved, and the respondent disbarred. All concur.

TURNER v. WOOLWORTH et al.

(Supreme Court, Appellate Division, Second Department. November 1, 1912.) 1. DIVORCE (8228*)-COUNSEL FEES.

In an action by a husband against his wife for a divorce, an allowance in that action to the wife for counsel fees is the limit of the husband's liability to the wife's attorney and counsel.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. § 655; Dec. Dig.

8 228.*] 2. HUSBAND AND WIFE (8 19*)-SUPPORT OF WIFE—ALLOWANCE.

Where, in a suit for divorce, an order was made requiring the husband to pay temporary alimony for the wife's support, such alimony constitutes the fund from which the wife is supportable; and while advances to her may be made on the faith of the fund, entitling the person making the advancement to subrogation, the wife's attorney, in case of the husband's refusal to pay the amount designated for her support, was not entitled to provide her with necessaries, and then recover for them from the husband.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. $$ 109,

121-138, 146, 322; Dec. Dig. § 19.*] 3. ATTORNEY AND CLIENT (8 190*)- ATTORNEY'S LIEN-ENFORCEMENT—DI.

VORCE PROCEEDINGS.

Counsel for wife, in an action for separation, recovered judgment for counsel fees, costs, accrued alimony, and an order directing payment to the wife thereafter of $30 per week. The husband having refused to comply with the judgment, an action was instituted at the attorney's instance in another state on the judgment, when all the recovery for money decreed was released by a collusive agreement between the hus. band and wife without the attorney's knowledge, but with notice of the attorney's lien on the judgment and orders and all the moneys due thereunder, and the judgments and orders were satisfied of record. Held, that the attorney was not limited to a motion to collect the money due him, as provided by Code Civ. Proc. 8 779, but was entitled to maintain an action against both parties for allowances, and for the recovery of such sum as was secured by his attorney's lien.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. 88 412-417; Dec. Dig. $ 190.*]

Appeal from Special Term, Kings County.

Action by Violet M. Turner, as assignee of Alexander S. Bacon, against Herbert G. Woolworth and another. From an order denying a motion of defendant Herbert G. Woolworth for judgment on the pleadings, he appeals. Affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.

Arnold L. Davis, of New York City, for appellant.
Alexander S. Bacon, of New York City, for respondent.

THOMAS, J. The plaintiff, as the assignee of Mr. Bacon, sues for legal services and money advanced to Mrs. Woolworth while she was the wife of Herbert G. Woolworth. The services, as alleged, were rendered in the successful defense of the wife in an action for absolute divorce brought by the husband, wherein Bacon acted as coun

For other cases see same topic &

NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

sel, for the successful prosecution as attorney for the wife of an action for separation, and for money advanced by Bacon individually to the wife for necessities. In the separation action, $400 counsel fees were allowed to the attorney, the costs taxed were $207.02, and the judgment provided for $1,580 accrued alimony and for the further payment to her of $30 per week.

[1] The complaint does not show whether an allowance was made for counsel fees in the action for absolute divorce. If there were such allowance, the amount thereof is the limit of the husband's liability to the wife's attorney and counsel (Naumer v. Gray, 28 App. Div. 529, 51 N. Y. Supp. 222; Damman v. Bancroft, 43 Misc. Rep. 678, 88 N. Y. Supp. 386); but by authority of Naumer v. Gray, supra, and Hays v. Ledman, 28 Misc. Rep. 575, 59 N. Y. Supp. 687, it is concluded that recovery for such services cannot be had. It is not shown at what times and for what specific purposes advances of money for necessaries were made, nor that the money was used in supplying necessities. The husband would not support his wife, neither would he pay the sum designated by the court for her support. Bacon supplied the husband's failure by advancing money, and on occasions

a remedy for advances has been found. Kenny v. Meislahn, 69 App. Div. 572, 75 N. Y. Supp. 81; Wells v. Lachenmeyer, 2 How. Prac. (N. S.) 252.

[2] But when the wife moves the court for direction for payment of money for support, her attorney should not be permitted to provide her with necessaries or money to buy necessaries, as if no provision had been judicially made, and recover therefor. Damman v. Bancroft, supra.' The alimony was the fund from which she was supportable, and advances to the wife could be made upon the faith of it; but facts should be shown in the complaint establishing right of subrogation or to a lien, and notice thereof to the husband.

[3] The present complaint is entirely insufficient. But it is shown in the complaint that, in an action instituted at Bacon's instance in Massachusetts on the judgment of separation, all the recovery for money decreed was released by a collusive agreement (made a part of the complaint) between the parties without Bacon's knowledge, and it is alleged that the judgments and orders have been satisfied of record. But the complaint alleges that, before such settlement was effected, notice of Bacon's lien as attorney upon the "judgment and orders, and all moneys due thereunder," was served on the husband. In such case, the attorney may maintain an action for allowances, and for the recovery of such sum as he had a lien on the costs, or other attorney's lien. The scanty statement in the complaint precludes precise decision.

It is urged by appellant that the attorney should collect the money due him by motion under section 779 of the Code of Civil Procedure, which permits execution against personal property. But the judgment is satisfied pursuant to a clandestine agreement between the judgment debtor and creditor, tending or purposed to defraud the attorney, or to defraud him of his usual opportunity, and in such case at least the attorney should be permitted to bring before the court the parties,

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