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view it, falls clearly within the provisions of the statute. The plain tiff, therefore, is entitled to an interlocutory judgment for the injunctive relief prayed for and providing for the assessment of her damages by a jury.
It follows that the findings of fact and conclusions of law inconsistent with these views should be reversed, and particularly specified in the order, and the judgment should be reversed, with costs to appellant, and that findings and conclusions in accordance with these views should be made. Let the order be settled on notice. All concur.
(192 App. Div. 153)
INVESTMENT REGISTRY OF AMERICA v. MOORE.
(Supreme Court, Appellate Division, First Department. May 28, 1920.) Pleading 142-Counterclaim held not to state cause of action against plaintiff.
A counterclaim which referred to an exhibit alleged to state correctly the complicated dealings between plaintiff and defendant, and specified certain items therein showing sales and other dealings with securities which it claimed entitled defendant to recover a large sum from plaintiff, but without alleging that the sales were by plaintiff for defendant, or that there was any agreement between the parties, held insufficient to state a cause of action.
Appeal from Special Term, New York County.
Action by Investment Registry of America against George G. Moore. From an order denying plaintiff's motion for judgment on the pleadings, plaintiff appeals. Reversed, and motion granted.
Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ.
Holm, Whitlock & Scarff, of New York City (Victor E. Whitlock, of New York City, of counsel), for appellant.
Felder, Gilbert, Campbell & Barranco, of New York City (Burton Smith, of New York City, of counsel), for respondent.
DOWLING, J. This action is brought to recover the sum of $5,000, on a promissory note payable on demand, dated November 4, 1918, made by defendant to the order of plaintiff and which has been protested for nonpayment. The answer of the defendant contains but one denial of any allegation of the complaint, viz. that there now remains due and unpaid upon the note the sum of $5,000 principal, with interest thereon, and $1.40 protest fees. It specifically admits the making and delivery of the note for value received and that it has been protested for nonpayment at an expense of $1.40. The answer, however, undertakes to set up two alleged counterclaims. To these plaintiff has demurred. The second counterclaim has been held to be insufficient and not to state a cause of action, and from this decision no appeal has been taken by defendant. The
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first counterclaim also fails to state a cause of action. By the fifth paragraph of the answer, which contains the first allegation of the matters claimed to constitute a counterclaim, reference is made to"Exhibit A statement, which he alleges on information and belief to be a correct statement of his dealing with the plaintiff, with the exception of a certain $25,000 note hereinafter referred to."
Exhibit A casts no light whatever on what is claimed to be the nature of the dealings between the parties. Equally indefinite and vague is the remaining part of said paragraph:
"On the 14th day of May, 1917, he began dealing with the plaintiff. These dealings were complicated and continued through a long period."
What these complicated dealings were is left to speculation.
The sixth paragraph sets forth that certain securities listed in item No. 1 of Exhibit A were "delivered to the plaintiff," but does not allege by whom or when. It further alleges that "it was agreed that plaintiff should have all amounts realized thereon over and above 80 cents on the dollar," but does not set forth between whom the agreement was made, nor how the realization should be effected, nor how plaintiff was obligated to do anything in the premises. The seventh paragraph alleges
"on information and belief that all of these securities were sold for a sum considerably above 80 cents on the dollar and that there is due him thereon, less payments hereinafter set forth, $660,000, with interest amounting to $6,958.33."
There is no allegation by whom the securities were sold, nor any suggestion of any agreement binding on plaintiff under which the sale was made and pursuant to which any payment is due him from plaintiff.
The eighth paragraph alleges that the stock specified in item No. 2"was delivered to the plaintiff by the defendant, and he alleges on information and belief that the same was sold as therein appears for the sum of $2,000."
There is no statement of any agreement under which the stock was so delivered, nor does it appear that plaintiff ever sold the stock or recovered the proceeds.
The ninth paragraph alleges that item No. 3 sets forth—
"a correct statement of Commonwealth Power Company bonds delivered to the plaintiff by the defendant, which were to be sold upon the same terms and conditions as the Missouri Metals Corporation bonds, and he alleges on information and belief that they were sold for a considerable amount above 80 cents on the dollar. There is therefore due him for payments as hereinafter shown the sum of $40,480."
There is no suggestion here of the terms of any agreement between plaintiff and defendant importing liability against the former, as there is also an entire absence of any allegation showing the terms and conditions of any agreement as to the Missouri Metals Corporation bonds. No facts are shown on which any liability could be predicated.
The tenth paragraph states on information and belief
"that item No. 4 is a correct statement of moneys received by the plaintiff from the securities therein specified, and that the sums in item No. 4, as stated, are due him, less payments hereinafter shown."
But there is no allegation that the securities belonged to defendant, or that the plaintiff received them from defendant, or of any agreement between them by which plaintiff became liable therefor.
The eleventh paragraph sets forth on information and belief that"item No. 5 is a correct statement of moneys received as therein shown by the plaintiff for the credit of defendant."
But there is no allegation that demand was ever made for the payment of this sum, $1,590, claimed to be coupons cashed by plaintiff on certain bonds held by a bank as collateral for a loan.
The twelfth paragraph alleges that "item No. 6 is a correct statement of cash paid by the defendant to the plaintiff"; but there are no facts pleaded as to how or why this payment was made, its purpose, that plaintiff was in any way obligated to return the sum, or that demand therefor has ever been made.
The thirteenth paragraph sets forth:
"Defendant alleges that item No. 7 is a correct statement of the amounts received by defendant from plaintiff in this connection, and he alleges on information and belief that there is due him under this counterclaim the sum of. $96,438.33. Defendant's transactions began with H. Evan Taylor, Incorporated; thereafter the plaintiff took over all of the assets of H. Evan Taylor, Incorporated, and assumed all of their liabilities."
This paragraph casts no light upon the nature of the transactions between plaintiff and defendant and in no way supplies the missing allegations necessary to show a liability on the part of plaintiff to defendant. The first counterclaim, as pleaded, absolutely fails to set forth any cause of action against plaintiff in favor of defendant. The order appealed from will be reversed, with $10 costs and disbursements, and plaintiff's motion for judgment on the pleadings granted, with $10 costs. All concur.
(192 App. Div. 226)
In re BUNT.
(Supreme Court, Appellate Division, First Department. May 28, 1920.) 1. Attorney and client 53 (2)—Evidence held to establish attorney's preparation of bogus decree.
In disciplinary proceedings against an attorney, evidence held to establish that respondent, prepared and delivered to his client a bogus decree, for the purpose of being used as proof of an interlocutory judgment.
2. Attorney and client 41-Preparation of bogus decree ground for disbarment.
An attorney, who prepared and delivered to his client a paper purporting to be a certified copy of a decree that had never been rendered, should be disbarred, in the absence of rational explanation.
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In the matter of disciplinary proceedings against James T. Bunt, an attorney. Respondent disbarred.
Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, PAGE, and MERRELL, JJ.
Einar Chrystie, of New York City, for petitioner.
Stuart M. Kohn, of New York City, for respondent.
CLARKE, P. J. The respondent was admitted to practice at a term of the Appellate Division, First Department, in December, 1908. It is alleged in the petition that he has been guilty of misconduct as an attorney at law as follows:
In January, 1916, one James W. Brodbelt retained the respondent as his attorney in a separation action brought against his wife, Leila L. Brodbelt. The respondent commenced such action in the Supreme Court, New York county, and the defendant therein appeared and filed an answer, containing a counterclaim praying for an absolute divorce. The case was placed on the calendar of the court, but has never been brought to trial. On or about May 4, 1916, the respondent prepared and delivered to his client, James W. Brodbelt, a paper purporting to be a certified copy of an interlocutory decree of absolute divorce entered and filed in the office of the clerk of New York county in the said action of Brodbelt v. Brodbelt. This paper was prepared by the respondent and delivered by him to his client, for the purpose of enabling the client to induce persons to whom he might exhibit the same to believe that an interlocutory decree of divorce had in fact been made and entered in said action of Brodbelt v. Brodbelt.
The paper is properly backed, with an indorsement typewritten. thereon in due form:
New York Supreme Court,
County of New York.
James W. Brodbelt, Plaintiff,
Leila L. Brodbelt, Defendant.
It is typewritten, and at the bottom of the first page on the side bears written initials "M P H," and at its end upon the side the same written initials, and concludes with the typewritten words: “Enter. M. L. E. J. S. C."-and the handwritten words: "Wm. F. Schneider, Clerk. A copy. William F. Schneider, Clerk." It has all the indicia of a duly certified copy of a duly entered decree. It bears the heading:
"At a Special Term, Part IV of the Supreme Court, held in and for the county of New York, on the 4th day of May, 1916. Present: Hon. Mitchell, L. Erlanger, Justice."
It states, after recitals of the appearances and pleadings, as follows:
"And the plaintiff having made default in pleading to said counterclaim and said cause having been duly placed on the calendar of this court and duly com ing on to be heard before the court on the 4th day of May, 1915, and the plaintiff having appeared by James T. Bunt, his attorney, and the defendant having appeared in person and by Welton C. Percy, Esq., her counsel, and the proofs and testimony on the part of the defendant having been heard, and the testimony having been reduced to writing and due deliberation having been had thereon, and a decision having been made containing findings of fact and conclusions of law, directing judgment accordingly:
"Now, on motion of Welton C. Percy, attorney for defendant, it is— "Ordered, adjudged, and decreed that the defendant is entitled to judgment to be entered as hereinafter provided:
"First. Dissolving the bonds of matrimony heretofore existing between plaintiff and defendant because of the adultery of the plaintiff, and freeing the defendant from the obligations thereof and permitting the defendant to remarry, but forbidding the plaintiff to remarry any other person during the lifetime of the defendant, except by express permission of the court"
-followed by the ordinary provisions of an interlocutory decree of divorce.
The respondent admits that he himself typewrote the paper and placed the written initials and alleged signature thereon, and that his purpose was to simulate a certified copy of an interlocutory decree duly entered. The questions of fact litigated before the learned official referee, to whom the proceeding was referred, were: First, how and why the document was manufactured; and, second, how it came in the possession of the complaining witness, James W. Brodbelt.
The case of Brodbelt v. Brodbelt appeared upon the court calendar on April 28, 1916. It was then adjourned until May 3, 1916, when it appeared at the foot of the calendar, called the waiting list, from which cases were to be taken for the regular day calendar as required; the case remaining on the waiting list until May 15, 1916, when it was again adjourned. It has never been tried, and no decree has ever been entered thereon.
Brodbelt testified: That he employed the respondent to bring an action against his wife for separation, and paid him $150, $100 of which was to be paid to the attorney for his wife, and that his wife interposed an answer, with a counterclaim for an absolute divorce. That on May 5, 1916, respondent gave Exhibit 5, the decree in question, to him on a Broadway car, and said: "Put it away, and forget it, and don't talk about it." He further testified that respondent told how his wife was dressed and how she looked on the witness stand. That he had overheard her say to Mr. Percy, that she was very glad that it was all over, and that the judge had signified that he only would hear one witness, that other witnesses were not necessary. That he discovered that this was not a genuine certified copy of a divorce decree either in July or September, 1916. That he went to the county clerk's office and asked for the envelope containing his case. He did not find any certified or any original copy of this decree. That he called respondent over the telephone the same day, and asked him what he meant by handing him a bogus decree, and that respondent replied, "You have been talking again," and