over the telephone, said affidavit not being intended for use in judicial proceedings. Matter of Napolis (1915), 169 App. Div. 469, 155 N. Y. Supp. 416. Endeavoring to conceal from the grievance committee payments to the complaining witness for the purpose of buying him off and securing the withdrawal of charges, and for making false statements upon the hearing denying such acts. Matter of Branch (1917), 178 App. Div. 585, 165 N. Y. Supp. 688. Commingling trust funds with his own and using same for making investments in second mortgages and corporate stock. Matter of Roth (1918), 181 App. Div. 618, 169 N. Y. Supp. 151.

Subd. 2. Practice, Punishment, Costs, Appeal.

(Fiero, Spec. Pro., 3rd Ed., pp. 234-241.)

The Appellate Division of the Supreme Court has long exercised jurisdiction to discipline attorneys and counselors at law who were guilty of professional misconduct, and by the statute as amended in 1912 the Legislature simply gives expression to a more extended power and jurisdiction to that court than was expressed in the statutes as they existed prior thereto. The statute as amended does not purport to take away the jurisdiction of this court on appeals from orders in proceedings to punish attorneys, neither can an intention to that effect be inferred therefrom. Matter of Robinson (1913), 209 N. Y. 354, affg. (1912), 151 App. Div. 589, 136 N. Y. Supp. 548. It is the settled practice of the Appellate Division of the First Department not to entertain proceedings against attorneys unless preliminary examination of the charges has been had by the district attorney or the appropriate committee of the Association of the Bar or the New York County Lawyers' Association. In re Tuck (1917), 167 N. Y. Supp. 534. In presenting charges against attorneys who have violated their trust and been guilty of unprofessional conduct the Association of the Bar of the City of New York is performing a public duty which the Legislature by special act has authorized it to perform. Matter of Jones (1913), 159 App. Div. 782, 785, 145 N. Y. Supp. 65.

Disciplinary proceedings are not instituted for the purpose of collecting debts owing by an attorney to his client, but for the purpose of inquiring into the professional conduct of the attorney

and to determine whether he is a fit person to continue as a member of the bar. Matter of Flowerman (1918), 181 App. Div. 488, 168 N. Y. Supp. 860. Proceedings to discipline an attorney for malpractice may not be used as a means of enforcing the claim of a client against him. Hence, the court on finding that the charges against an attorney in such proceeding have not been proved will not require the repayment of money to a client as a condition precedent to the dismissal of a charge of misconduct although the client is clearly entitled to it. Matter of Fox (1912), 150 App. Div. 602, 135 N. Y. Supp. 821. See also Matter of Branch (1917), 178 App. Div. 585, 165 N. Y. Supp. 688. A payment while the disbursement proceeding is pending of the moneys claimed to have been misappropriated in no way condones the offense charged and under investigation. Matter of Flowerman (1918), 181 App. Div. 488, 168 N. Y. Supp. 860.

Under the Judiciary Law the Appellate Division has power, upon the personal motion of an attorney at law who has been charged in the written opinion of a justice with professional misconduct, to order an inquiry into his conduct and may designate persons to prepare charges and report to the court. Matter of Wilson (1913), 158 App. Div. 607, 143 N. Y. Supp. 852, mod. on rearg. (1914), 160 App. Div. 521, 145 N. Y. Supp. 557.

Under subdivision 2 of section 88 of the Judiciary Law the disbarment of an attorney who has committed a crime is not dependent upon his conviction for the offense, as it is under subdivision 3, and when an attorney is charged with the commission of a crime it is the duty of the Appellate Division to investigate, and if the charge is proved disbar him. The fact that he has not been indicted or convicted is not a defense in proceedings of this character. Hence, where a charge of perjury committed by an attorney on the trial of an action in which he was the defendant has been referred to an official referee, and it does not appear that criminal proceedings have been instituted, or that the attorney asked to have the proceedings suspended pending the investigation of the crime, the referee should not report without giving the accused an opportunity to present his testimony. Matter of Stanton (1914), 161 App. Div. 555, 146 N. Y. Supp.

Order made by the Appellate Division upon the motion of an

attorney at law who has been charged in the written opinion of a justice of the Supreme Court with professional misconduct, granting an inquiry and designating persons to prepare charges and report, revised so as to show affirmatively that the court did not seek an investigation of the opinion of the justice. Matter of Wilson (1914), 160 App. Div. 521, 145 N. Y. Supp. 557.

A proceeding to disbar an attorney is not a criminal proceeding and the statutory rule of no presumption does not apply. Matter of Spenser (1911), 143 App. Div. 229, 128 N. Y. Supp. 168, affd. (1911), 203 N. Y. 613. The doctrine of reasonable doubt has no place in a proceeding to discipline an attorney at law. The questions involved are to be determined upon the fair preponderance of the evidence and the reasonable inferences to be drawn therefrom, and not beyond a reasonable doubt. Matter of Herrman (1916), 175 App. Div. 310, 161 N. Y. Supp. 977. A disbarment proceeding is not a criminal case within the provision of the State Constitution (Art. 1, § 6) which says that no person shall be compelled in any criminal case to be a witness against himself." Matter of Rouss (1917), 221 N. Y. 81. Neither is disbarment a penalty or forfeiture within the meaning of the section of the Penal Law (§ 584) which provides that no person shall be excused from testifying on any trial for conspiracy upon the graund that the testimony required of him may tend to subject him to a penalty or forfeiture. Matter of Rouss (1917), 221 N. Y. 81.

A member of a bar association, who does not belong to either the grievance committe or the executive committee, mày, as official referee, hear charges of misconduct made against an attorney by the grievance committee of the association, and the objection cannot be made that he is both a prosecutor and a judicial officer in the proceeding. Matter of Jones (1913), 159 App. Div. 782, 145 N. Y. Supp. 65.

The suspension of an attorney from practice does not prevent him from continuing to act in person in an action wherein he is plaintiff. Matter of Secured Holdings Corporation (1915), 88 Misc. 706, 151 N. Y. Supp. 422.

On a proceeding to remove an attorney at law from office upon the charge that he purchased a railroad ticket with the preconceived plan and conspiracy to defraud the railroad company by

using the process of the court in a suit against said company, upon the fictitious and unfounded claim that it had refused to redeem the ticket so as to become liable for the statutory penalty, and also for committing perjury on the trial of the action, the charges against the respondent were sought to be sustained by the testimony of paid detectives to whom he is alleged to have confessed to the conspiracy. Evidence examined, and held, insufficient to sustain the charges. Matter of (1916), 175 App. Div. 653,

161 N. Y. Supp. 504.

The fact that an attorney appears to have maintained a good reputation in the community and does not appear to have been guilty of wilful dishonesty may mitigate the punishment for improper use of trust funds. Matter of Roth (1918), 181 App. Div. 618, 169 N. Y. Supp. 151.

No appeal can be taken from the order of disbarment as a matter of right where the decision of the Appellate Division was unanimous. Matter of Mathot (1917), 222 N. Y. 8. In a proceeding to disbar an attorney, the power to review ends in the Appellate Division when it appears that the proceeding has been instituted and conducted in accordance with the statutes and rules authorizing it; that no substantial legal right of the accused has been violated; that no prejudicial error has been committed in the reception or exclusion of testimony, and that there is some evidence to sustain the findings upon which the order is based. Matter of Robinson (1913), 209 N. Y. 354, affg. (1912), 151 App. Div. 589, 136 N. Y. Supp. 548. The power of review in the Court of Appeals is limited to the consideration of the single question whether the finding of the guilt has any evidence to sustain it. Matter of Flannery (1914), 212 N. Y. 610, affg. (1912), 150 App. Div. 369, 135 N. Y. Supp. 612. Questions relating to the comparative weight of evidence or the fairness of the sentence in a proceeding to discipline an attorney are beyond the jurisdiction of the Court of Appeals. Matter of Hawes (1916), 217 N. Y. 602, affg. (1915), 169 App. Div. 644, 156 N. Y. Supp. 283.

A proceeding to discipline an attorney is not criminal in its nature so as to entitle a defendant to claim his constitutional privilege as a witness, and proper inferences may be drawn from his refusal to answer questions in regard to an employee who

was an important factor in a transaction alleged as a ground for disbarment. Matter of O'Neill (1918), 184 App. Div. 75.

In an action to foreclose a mortgage, a bar association has no right to intervene for the mere purpose of determining whether the attorney appearing for the plaintiff corporation so appears in violation of section 280 of the Penal Law which declares that corporations or voluntary associations shall not practice law. The ordinary methods of discipline of attorneys should be followed. Post v. Louis (1918), 184 App. Div. 533.

BANKRUPTCY LAW.

See DEBTOR AND CREDITOR LAW.

BOARD OF CLAIMS.

See CLAIMS, COURT OF.

CERTIORARI TO REVIEW ASSESSMENT.

See TAX LAW, CERTIORARI TO REVIEW ASSESSMENT.